                                                                             ACCEPTED
                                                                         08-18-00005-CV
                                                             EIGHTH COURT OF APPEALS
                    08-18-00005-CV                                      EL PASO, TEXAS
                                                                       5/22/2018 4:52 PM
                                                                      DENISE PACHECO
                                                                                  CLERK


                No. 08-18-00005-CV
                                                        FILED IN
           In the Court of Appeals for the       8th COURT OF APPEALS
                                                     EL PASO, TEXAS
              Eighth District of Texas           5/22/2018 4:52:14 PM
                                                     DENISE PACHECO
                                                         Clerk
                   El Paso, Texas

***********************************************

           Caples Land Company, L.L.C.,

                                  Appellant,
                          vs.

           The City of El Paso, Texas and
      Its Building and Standards Commission,

                                  Appellees.

***********************************************

    Appealed from the 327th Judicial District Court
               El Paso County, Texas

***********************************************

                  Appellant's Brief

***********************************************

                           Carlos Eduardo Cardenas
                           Texas Bar No. 03787700
                           717 E. San Antonio, 3rd Floor
                           El Paso, TX 79901
                           Tel. No. (915) 544-7860
                           Fax No. (915) 532-4768
                           Email: cecardenaslaw@gmail.com
                                Attorney for Appellant
                            No. 08-18-00005-CV

                      In the Court of Appeals for the

                          Eighth District of Texas

                               El Paso, Texas

           ***********************************************

                      Caples Land Company, L.L.C.,

                                             Appellant,
                                     vs.

                      The City of El Paso, Texas and
                 Its Building and Standards Commission,

                                             Appellees.

           ***********************************************
               Appealed from the 327th Judicial District Court
                          El Paso County, Texas

           ***********************************************

                     IDENTITY OF THE PARTIES

           ***********************************************

      In order that members of this Court may determine disqualification or

recusal under Rule 38.l(a) of the Texas Rules of Appellate Procedure,

Appellant certifies that the following is a complete list of the parties,

attorneys, and other persons with a financial interest in the outcome of this

lawsuit:
                                                                           ii
           IDENTITY OF PARTIES AND COUNSEL (Cont.)

Linda Chew
Trial Court Judge, 32?1h Judicial District Court
500 E. San Antonio, El Paso, Texas 79901

Caples Land Company, L.L.C.
Appellant

Joseph D. Vasquez
Trial Counsel for Caples Land Company, L.L.C.
310 N. Mesa St., Suite 710, El Paso, Texas 79901

Carlos Eduardo Cardenas
Trial Counsel and Appellate Counsel for Caples Land Company, L.L.C.
717 E. San Antonio, fd Floor, El Paso, Texas 7990 I

The City of El Paso, Texas and Its Building and Standards Commission
Appellee

Sergio Estrada
Trial Counsel and Appellate Counsel for Appellee
P.O. Box 1890
El Paso, Texas 79950-1890




                                                                      iii
                       Table of Contents

                                           Page

IDENTITY OF PARTIES AND COUNSEL            11-111

TABLE OF CONTENTS                          lV

INDEX OF AUTHORITIES                       V-Vl

STATEMENT OF THE CASE                      2

STATEMENT OF FACTS                         3

SUMMARY OF ARGUMENT                        5

POINT OF ERROR NUMBER ONE                  6

POINT OF ERROR NUMBER TWO                  10

POINT OF ERROR NUMBER THREE                14

PRAYER FOR RELIEF                          19

CERTIFICATE OF COMPLIANCE                  20

CERTIFICATE OF SERVICE                     20




                                                    iv
                             INDEX OF AUTHORITIES



Federal Cases

Grayned v. City of Rockford,                                                  12
        408 U.S. 104, 108-09, 92 S.Ct. 2294, 33 L.Ed. 2d 222 (1972).

State of Washington v. Roberge,                                               7
        278 U.S. 116, 121, 49 S.Ct. SO, 73 L.Ed. 210 (1928).


State Cases

Basse Truck Line, Inc. v. Tex. Natural Res. Conservation Comm 'n,             18
        2003 Tex. App. LEXIS 5941 (Tex.App. -Austin, 2003)

City of Dallas v. Stewart,                                                    11
       361 S.W.3d 562 (Tex.App.-Dallas, 2012)

City of Mesquite v. Aladdin's Castle, Inc.,                                   11
       559 S.W.2d 92, 94 (Tex.Civ.App.-Dallas 1977)
       writ refd n.r.e. by 570 S.W.2d 377 (Tex. 1978)(per curiam)

City ofWebsterv. Signed, Inc.,                                               11
       682 S.W.2d 644, 646 (Tex.App.-Houston [1st Dist.] 1984, writ ref d n.r.e.)

Comm'nfor Lawyer Discipiine v. Benton,                                       11
       980 S.W.2d 425,437 (Tex. 1998)

Isuani v. Manske-Sheffield Radiology Group, P.A,                              6
       802 S.W.2d 235,236 (Tex. 1991)

Mayhew v. Town ofSunnyvale,...                                               18
       964 S.W.2d 922,935, 41 Tex. Sup. Ct. J. 517 (Tex. 1998)

Murphy v. McDaniel,                                                           6
       20 S.W.3d 873 (Tex.App.-Dallas, 2001)

Pennington v. Singleton,                                                     11
       606 S.W.2d 682, 689 (Tex. 1980)




                                                                                    V
Save Our Springs Alliance, Inc. v. Austin lndep. Sch. Dist.,                 6
       973 S.W.2d 378,384 (Tex. App. -Austin 1998, no writ)

Smith v. City of League City,                                                7
       338 S.W.3d 114, 127 (Tex.App. - Houston [14th Dist.] 2011, no pet.)

Tex.Liquor Control Bd. V. Attic Club, Inc.,                                  11
       457 S.W.2d 41, 45 (Tex. 1970)

Tex. Workers' Comp. Comm'n. v. Patient Advocates o/Tex.,                     7
       136 S.W.3d 643, 658 (Tex. 2004)



State Statutes

Tex.Civ.Prac.& Rem. Code Ann §41.001(5)(West 2015)                           18

Tex.Civ.Prac.& Rem. Code §41.002(c )(West 2008)                              18

Tex.Civ.Prac.& Rem. Code §41.004(a)(West 2008)                               18

Tex.Civ.Prac.& Rem. Code Ann. §41.008 (West Supp. 2014)                      19

Texas Local Government Code §214.001(h)-(k) (West 2008)                      10,16




                                                                                  vi
                            No. 08-18-00005-CV

                      In the Court of Appeals for the

                          Eighth District of Texas

                               El Paso, Texas

         ***********************************************

                      Caples Land Company, L.L.C.,

                                             Appellant,
                                     vs.

                      The City of El Paso, Texas and
                 Its Building and Standards Commission,

                                             Appellees.

         ***********************************************

               Appealed from the 32?1h Judicial District Court
                          El Paso County, Texas

         ***********************************************

                             Appellant's Brief

         ***********************************************

To the Court of Appeals:

      Caples Land Company, L.L.C., Appellant in this cause, would

respectfully show the following in support of its request for reversal of the

Final Judgment granted against it.



                                                                           1
      For clarity, Caples Land Company, L.L.C. will be referred to as the

Appellant and The City of El Paso, Texas and Its Buildings and Standards

Commission will be referred to as the Appellee.

                       STATEMENT OF THE CASE

      Caples Land Company, L.L.C. is the owner of the property located at

105 N. Oregon, El Paso, Texas, commonly known as the "American

Furniture Building." In 2010, the American Furniture Building became the

subject of City of El Paso, Texas' Building and Standards Commissions'

(hereinafter "BSC") enforcement actions.      Disputes arose between the

building owner and the representatives of the Building and Standards

Commission regarding the extent of the needed repairs as well as the extent

of the compliance by the building's owner. Caples Land Company, L.L.C.

obtained a temporary restraining order to enjoin the BSC meeting where the

unwarranted fines were to be assessed. The City appealed the TRO to the   gth


Court of Appeals and up to the Texas Supreme Court.         The case was

remanded and the BSC proceeded to convene in 2016 and assess the largest

fine in Texas history ($2.1 Million) against a building owner. Caples Land

Company, L.L.C. sought judicial review of the fine, which was reduced, but

still remains an extraordinary fine at $1.2 Million by the district court.

Caples Land Company, L.L.C. submits that the award by the trial court is in


                                                                           2
violation of the Appellant's constitutional rights and 1s capnc10us and

arbitrary without regard to guiding principles of law.

                        STATEMENT OF FACTS

The instant case is an appeal of a building and standards commission order

and fine. Plaintiff was previously granted an injunction by the Honorable

327th Judicial District Court on August 27, 2010, after a March 31, 2010

Building and Standards Commission (hereinafter may be referred to as

"BSC") hearing resulted in an Order (CR-295-298) with its findings that

were to be addressed in a subsequent hearing. (115-162) The injunction was

to enjoin the City's Building and Standards Commission from convening for

a Compliance hearing on the property located at 105 N. Oregon. (CR-164-

165) The City appealed and, on January 23, 2013 the      gth   Court of Appeals

reversed this Court's injunctive action. (CR-239-256)           Appellant then

appealed to the Texas Supreme Court which denied Appellant's Petition for

Review on September 20, 2013. (CR-204-237)         In accordance with the 8th

Court of Appeal's Opinion, the case was remanded to the trial court for

further proceedings under cause number 2010-1970 (CR-239-256), until it

was disposed of by a default granting of the City's Motion for Summary

Judgment on November 19, 2015.




                                                                             3
      On May 5, 2016, armed with the       gth   Court of Appeals Opinion, the

City of El Paso's Building and Standards Commission assessed a civil

penalty of $2,158,000.00, with interest ($1,000.00 per day for 2,158 days).

(CR-180-188) Upon receiving notice of the Defendant's order and fine,

Appellant timely filed its Application for Writ of Certiorari with the district

court. (CR-10-19)

      In the course of the instant proceeding, the Court announced her

intention to postpone determinations as to 1) the standard for review:

substantial evidence or de novo and 2) the necessity for the issuance of the

Writ of Certiorari. (RR-3:9- 13; 17:5-9) The Court ordered the parties to

mediation.   (RR-17:18-20)     As the mediation deadline approached, Mr.

Sergio Estrada, the Assistant City Attorney, requested an extension of the

mediation deadline, counsel for Petitioner agreed to the same, and the Court

agreed to extend the mediation deadline.         At a conference on or about

September 25, 2017, Appellant's then counsel, Joseph D. Vasquez,

expressed to the Court his recent discovery of a potential conflict of interest

that had arisen between counsel and a principal of the Caples Land

Company, L.L.C. and requested an extension of the mediation deadline so

that Appellant could secure other counsel. (CR-335) Instead, it appears the




                                                                             4
Court made a ruling without argument nor submissions from the parties as to

the two issues previously identified as material to her decision making.

      The Court issued a letter order on September 26, 2017 requesting that

the "attorney for the City shall calculate the amount of the fine pursuant to

this order and prepare a judgment in accordance with the Court's ruling."

Said ruling reduced the fine against Appellant from $1,000.00 per day to

$500.00 per day. (CR-337-338)


                   SUMMARY OF THE ARGUMENT

POINT OF ERROR NUMBER ONE

The trial court erred in assessing fines prior to November 20, 2015, the date
all appeals were decided and the case and the injunction were finally
disposed of.


POINT OF ERROR NUMBER TWO

The trial court erred in applying a substantial evidence standard when
constitutional issues and an extraordinary fine were assessed against
Appellant in part by reliance on the Vacant Building Ordinance, a vague,
invalid law that was discriminatorily applied.

POINT OF ERROR NUMBER THREE

The trial court erred in abandoning all guiding principles and granting a
capricious and arbitrary award that was factually and legally insufficient.




                                                                           5
                               ARGUMENT

POINT OF ERROR NUMBER ONE

The trial court erred in assessing fines prior to November 20, 2015, the
date all appeals were decided and the case and the injunction were
finally disposed of.


A.    THE FINE JS EXCESSIVE

      1.   Unfairly Penalizes Appellant while Appeals are Being
Foreclosed

      Although the injunction was granted in 2010, the foreclosure of all

appeals (including the Texas Supreme Court) did not occur until September

20, 2013, making final the 8th Court of Appeal's decision, "We reverse the

order granting the temporary injunction and remand the cause for further

proceedings consistent with this opinion."       "We are of the opinion

that, absent changed circumstances, a determination of the parties' claims

should serve as the basis for dissolution of a temporary injunction only upon

final adjudication.   At that time, the temporary injunction becomes

moot. See lsuani v. Manske-Sheffield Radiology Group, P.A., 802 S.W.2d

235, 236 (Tex.1991); Save Our Springs Alliance, Inc. v. Austin lndep. Sch.

Dist., 973 S.W.2d 378, 384 (Tex. App.-Austin 1998, no writ)." Murphy v.

McDaniel, 20 S.W.3d 873 (Tex.App.-Dallas, 2001).




                                                                           6
      Appellant submits that the penalty should not be assessed until the

injunction dissolved or became moot. The Judgment in this case assesses a

penalty for a period of 2,158 days from March 31, 2010 to May 5, 2016.

Even calculating the penalty reduction from $1,000.00 per day to $500.00

contained in this Court's letter order, the fine of $1,079,000.00 is

substantially greater than it should have been. Appellant submits the trial

court erred in assessing fines prior to November 20, 2015, after all appeals

were decided and the case and the injunction were fmally disposed as until

that time the injunction was in place.

      2.     Appellant's Due Process was Violated

      a.     Appellant was denied fair notice and an opportunity to

participate in the Compliance hearing. A deprivation of property without

due process violates the Texas Constitution. Tex. Workers' Comp. Comm 'n.

v. Patient Advocates of Tex., 136 S.W.3d 643, 658 (Tex. 2004); see also

Smith v. City of League City, 338 S.W.3d 114, 127 (Tex.App. - Houston

[14th Dist.] 2011, no pet.). But a city may not, under the guise of the police

power, arbitrarily interfere with private property or impose unusual or

unnecessary regulations on it. See State of Washington v. Roberge, 278 U.S.

116, 121, 49 S.Ct. 50, 73 L.Ed. 210 (1928).




                                                                            7
      During this time, representatives for the Caples Land Company,

L.L.C. were working with a representative for the City, Laura Foster, City

Architect. Communications were exchanged between Ms. Foster and Caples

Land Company representatives including, but not limited to William D.

Abraham and Juliann Smith telephonically as well as via email.         In her

emails, Ms. Foster advised that the meeting was to simply amend the City's

Building and Standards Commission Order.         For example, Ms. Foster's

April 8, 2016 email to William Abraham and Juliann Smith states in

pertinent part, "I am required to take it back through public hearing process

to adjust the 2010 orders. It will be very much a compliance report and

there has been progress, so that will be made public. There will not be any

surprises for you in my report/recommendations nor do you need to be

there." (CR167-175) Further, Ms. Foster gave an interview to Robert Gray

of El Paso, Inc. dated April 4, 2016, wherein he reports" ... the imprisoned

businessman complied, taking steps to secure the building and remove

possible safety hazards after a protracted legal battled, according to city of

El Paso architect Laura Foster." He goes on to attribute statements from Ms.

Foster regarding working bathrooms, fixed and removed wiring and clutter,

a property manager hired, etc. The article further states, "I've gone in and

investigated, and there's movement,' Foster said.         'It's progress, not


                                                                            8
perfection, but now we take the case back to the Building and Standards

Commission."' (CR-177-178) Despite being told that the hearing was a

formality to adjust the Buildings and Standards Commission Order and that

it was not necessary for the building owner to attend, on April 27, 2016, a

full blown hearing was held with in excess of 43 exhibits and the largest fine

in Texas history by a Building and Standards Commission was imposed.

(CR-306-321) Appellant asserts it was denied its constitutional rights to

notice and due process and as such the Judgment is illegal.          Appellant

submits that the trial court erred in conducting review of constitutional

issues and takings under a substantial evidence standard, de novo review is

mandated.

      b.     Judgment Makes Findings Beyond the BSC Findings

             1.     Appellant submits that the judgment signed by the Court

against William D. Abraham (a.k.a. Billy Abraham) individually is

unfounded as it is without substantial evidence to support the claims that

"William D. Abraham" is the sole or main decision maker for all issues and

matters concerning the Property."          Further, any discussion or evidence

which the Court and/or BSC based their findings were had in violation of

Appellant and/or non-party William D. Abraham's (a.k.a. Billy Abraham)

right to due process and/or fair notice.


                                                                            9
             2.    The Judgment includes language to the effect that

Appellant has 90 days to comply with the BSC order and 60 days to vacate

the existing teriant. A review of the letter ruling dated September 25, 2017,

(CR-337-338), fails to contain any language adopting deadlines nor does it

ask the Assistant City Attorney to add such language.       Appellant submits

that these deadlines are legally insufficient pursuant to Texas Local

Government Code §214.00l(h)-(k) and are arbitrary and capricious by the

City's own prior arguments to the Texas Supreme Court. (CR-204-237)

             3.    Appellant objected to the representations contained in

Paragraph 3 of the Judgment that the Court "heard arguments of Counsel for

both parties." This is the heart of Appellant's argument at section III herein,

to wit: that Appellant was denied the opportunity for it's arguments to be

heard.

             4.    Appellant objected to the representations contained in

Paragraph 2 of the Judgment that the Court "issued a Writ of Certiorari

directed at the Commission. . ." A review of the docket in this matter on El

Paso County District Clerk's website does not reflect the issuance of a writ.

(CR-340) Appellant was never notified of the issuance of a writ nor was it

copied on the documents allegedly provided to the Court by the City in




                                                                            10
response to the writ (despite assurances from the Assistant City Attorney

that it would). Again, Appellant was denied due process and/or fair notice.

POINT OF ERROR NUMBER TWO

The trial court erred in applying a substantial evidence standard when
constitutional issues and an extraordinary fine were assessed against
Appellant in part by reliance on the Vacant Building Ordinance, a vague,
invalid law that was discriminatorily applied.

      In a takings context, a court may grant deference to findings of

historical fact, but mixed questions of law and constitutionally relevant fact,

like a nuisance determination, must be reviewed de novo. City of Dallas v.

Stewart, 361 S.W.3d 562 (Tex.App.-Dallas, 2012).                  A statute or

ordinance is unconstitutionally vague if the persons regulated by it are

exposed to risk or detriment without fair warning or if it invites arbitrary and

discriminatory enforcement by its lack of guidance to those charged with its

enforcement. See Comm 'n for Lawyer Discipline v. Benton, 980 S.W.2d

425, 437 (Tex. 1998); Tex.Liquor Control Bd. V. Attic Club, Inc., 457

S.W.2d 41, 45 (Tex. 1970); City of Webster v. Signed, Inc., 682 S.W.2d 644,

646 (Tex.App.-Houston [1st Dist.] 1984, writ refd n.r.e.). Implicit in this

constitutional safeguard is the idea that laws must have an understandable

meaning and must provide legal standards that are capable of application.

City of Mesquite v. Aladdin's Castle, Inc.,            559 S.W.2d 92, 94

(Tex.Civ.App.-Dallas 1977) writ ref'd n.r.e. by 570 S.W.2d 377 (Tex.
                                                                             11
1978)(per curiam). Due process is violated and a law is invalid if persons of

common intelligence are compelled to guess at a law's meaning and

applicability. Attic Club, 457 S.W.2d at 45; Pennington v. Singleton, 606

S.W.2d 682, 689 (Tex. 1980); Signed, 682 S.W.2d at 646. A vague law

impermissibly delegates basic policy matters to policemen, judges, and

juries for resolution on an ad hoc and subjective basis, with the attendant

dangers of arbitrary and discriminatory application.    Grayned v. City of

Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 33 L.Ed. 2d 222 (1972).

      In the April 11, 2016 El Paso, Inc. article, "City attacks unsafe

buildings," (CR-195-196), it was reported that the "City Council passed its

first vacant building ordinance in 2012 to address the problem of vacant,

dangerous buildings in Downtown."         Under the caption Unworkable,

reporter Robert Gray states, "But the ordinance was unworkable in practice,

and the Fire Department and city inspectors struggled to enforce it. Property

owners said it was confusing and difficult to comply with." "In 2014, only

11 percent of vacant buildings in Downtown were in compliance with one of

the ordinance's less painful provisions, which required owners to register

their vacant buildings." Fire Marshall Ariola is quoted, "With the number of

staff hours and time put into the whole process, that was a really low

indicator that the ordinance was successful," and "Arriola said the American


                                                                          12
Furniture building is shaping up to be another success story." Fire Marshall

Arriola goes on to say that Vacant Building Ordinance is still being tweaked,

certain provisions are no longer applied, that it conflicts with the Fire Code.

And although, Arriola reported "The Fire Department proposed several

revisions to the vacant building ordinance last year, which has been

formalized in a draft ordinance. But it is still being tweaked." And "If

passed by City Council, it would rescind the registration requirement as well

as requirements to install fire sprinkler systems in vacant buildings ... The

Fire Department stopped applying those parts of the vacant building

ordinance a year ago, and has focused on safeguarding buildings." Yet at

the BSC hearing, Arriola presented slides showing a vacant, unsecured

building and, among other things, noted that presented an exhibit showing

that building's fire sprinkler systems were found to be non-working. (CR-

306-321) And a review of the Agenda for the April 27, 2016 BSC meeting

states, in pertinent part, "A request was made to move the presentation of the

Vacant Building Ordinance before hearing the case of 105 N. Oregon."

(CR-198)     Appellant submits that its due process was violated by the

reliance in the presentation of the Vacant Building Ordinance and the vague,

invalid law was discriminatorily applied against it. Appellant asserts that

due to the constitutional issues and the extraordinary fine assessed in part by


                                                                            13
reliance on vague ordinance, that the trial court erred in applying a

substantial evidence standard when a de novo review is proper.




POINT OF ERROR NUMBER THREE

The trial court erred in abandoning all guiding principles and granting a
capricious and arbitrary award that was factually and legally insufficient.


      It is important to recognize that substantial evidence does exist of

Appellant's good faith compliance and attempts to comply with the BSC

Orders - see the emails and newspaper interviews of City representatives.

(CR-167-175; CR-177-178;CR-190-196) Appellant reasserts that due to the

confusion created by the communications of the City's representative Ms.

Laura Foster regarding the actual scope of the proceeding to be conducted

on April 29, 2016 and the need for Appellant's presence, it was denied fair

notice and due process and is entitled to a de novo review.          However,

assuming arguendo, substantial evidence was before the Court of

Appellant's compliance and good faith attempts at compliance by virtue of

the evidence and testimony heard at the injunction hearing held before this

Honorable Court on August 27, 2010.             (CR-115-162)      During this

proceeding testimony was given by Plaintiffs representative, William D.


                                                                              14
Abraham as well as Plaintiffs expert witness, Engineer Fennin Dorado. On

page 6 of the its Response to Petition for Review, filed with the Texas

Supreme Court, Case No. 13-0326 (CR-216), the City of El Paso cited to the

Court Reporter's Record regarding the live testimony given by both William

D. Abraham and Fennin Dorado that, "In regard to the above-listed repairs

by the Commission, Petitioners attempted to comply with the specific items

ordered, 'tried [their] best to cooperate and do whatever was feasible and

identifiable,' and represented that 'Anything that was feasible that ... didn't

require hundreds of thousands of dollars to redo ... [was] addressed."' "In

addition, Petitioner's purported engineering expert testified that as a result of

their repairs, the deficiencies identified in the Commission's order were

remedied." Id. See footnotes 16-20 and 22-23 of the City's Response to

Petition for Review. Mr. Abraham clearly testified that the building owner

has made the feasible repairs and Mr. Dorado testified that " ... what Mr.

Abraham has done was correct and compliant.            And in - It is a safe

building."

      In     the above referenced pleading at page 7 (CR-217), the City

adopts guidelines that it represents to the Texas Supreme Court are

material, but because of the injunction, the BSC was prevented from

considering 1) whether the repairs allegedly made have brought the building


                                                                             15
up to code or have made it safe (as Plaintiffs expert Mr. Dorado testified) or

2) whether grandfathering might apply to specific code requirements or 3)

made any decision to revoke the building's certificate of occupancy or

whether lesser measures might be warranted or 4) whether in light of alleged

progress on the building, extension of the repairs deadline might be proper,

as authorized by Tex.Loc.Gov't Code §214.001 (h) - (k)(providing

timetable for repairs to substandard building and conditions under which

additional time may be given by Commission). In footnote 24 (CR-217-

218), the City represents that the "relevant agenda item for the enjoined

hearing of July 28, 2010 does not mention revocation of the certificate of

occupancy ... Further, the City Inspector's only recommendations for the

enjoined hearing were that a fine be assessed, that the order be filed, and that

notice be given that continuing non-compliance might result in more severe

penalties, not that the certificate of occupancy be revoked at that time."

      The City correctly represented to the Texas Supreme Court at least

four (4) different     material issues that the Building and Standards

Commission was enjoined from considering in a Compliance hearing as a

result of the injunction granted in 2010. It argued that especially in light of

the testimony presented by the building owner's representative and the

building owner's expert witness these issues were significant to have been


                                                                             16
considered. However, a review of the BSC Minutes for April 29, 2016, .

(CR-306-321, clearly shows that unrestrained and given the opportunity, the

Building and Standards Commission, in 2016, failed to adhere to any

guidelines or consider those material issues and, instead issued a capricious

and arbitrary order assessing an astronomical, illegal fine. Plaintiff submits

that the 8th Court of Appeals reversed only as to the issuance of the

injunction to enjoin the Compliance hearing. It did find, however, that "The

dispute between the parties is ripe for review and the district court has

subject matter jurisdiction. Even if the district court erred by granting the

temporary injunction in the context of the appellate proceeding below, that

error would not deprive the court of subject matter jurisdiction." See the   8h
Court of Appeals Opinion dated January 23, 2013 at page 8 (CR-246)

      Appellant submits that the district court had subject matter jurisdiction

and heard substantial evidence regarding Appellant's compliance and good

faith attempted compliance. The BSC Minutes show that the BSC did not

adhere to their own guidelines nor consider the issues that it represented to

the Texas Supreme Court were material resulting in an order and fine that

abandoned all guiding principles and which are capricious and arbitrary.

Appellant submits that the trial court's ruling was factually and legally

insufficient. In fact, the Judgment signed by the trial court is a Judgment


                                                                             17
against the real estate and the building although the land is owned by a 200

N. Mesa LLC, a separate entity not involved in this case. (CR-326-327).

       4.      The Fine Exceeds the Value of the Building - Takings Case

               a.    A Takings Case Mandates a De Novo Review

       In the instant case, event the reduced fine of $1,079,000.00 exceeds

the value of the building which is valued by the Central Appraisal Board at

$843,494.00.        (CR-200-202)     "A property owner     deprived of all

economically productive or beneficial use of his land may assert a claim for

regulatory taking. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 935,

41 Tex. Sup. Ct. J. 517 (Tex. 1998).      A restriction denies the owner all

economically viable use of the property or totally destroys the value of the

property if it renders the property without value. Id. To determine whether

all economically viable use of a property is denied requires an analysis of

whether any value remains in the property after the governmental

action. Id."    Basse Truck Line, Inc. v. Tex. Natural Res. Conservation

Comm 'n, 2003 Tex. App. LEXIS 5941 (Tex.App. - Austin, 2003).

Appellant submits that the City's action in assessing an excessive fine

constitutes a takings case and the trial court erred in not conducting a de

nova review.

      5.   Fine Exceeds Damage Cap of
      Chapter 41 Tex.Civ.Prac.& Rem. Code
                                                                           18
      Under Chapter 41, "exemplary damages" means "any damages

awarded as a penalty or by way of punishment but not for compensatory

purposes."     Tex.Civ.Prac.& Rem. Code Ann §4I.001(5)(West 2008)

Chapter 41 requires proof of actual damages. See Tex.Civ.Prac.& Rem.

Code §41.004(a). Chapter 41 prevails over all other law to the extent of any

conflict. See Id. §41.002(c ). When Chapter 41 applies to a cause of action,

it limits the amount of exemplary damages a claimant may recover. See

Tex.Civ.Prac.& Rem. Code Ann. §41.008 (West Supp. 2014).

§41.008 (b) states in pertinent part:

             Exemplary damages awarded against a defendant may not
             exceed an amount equal to the greater of:

                    (1 )(A) two times the amount of economic damages; plus
                        (B) an amount equal to any noneconomic damages
                        found by the jury, not to exceed $750,000.00; or
                    (2) $200,000.

      Appellant submits the trial court erred in failing to request the Writ of

Certiorari which would have reflected in the record, Appellant's request for

relief pursuant to Tex.Civ.Prac. & Rem. Code, Chapter 41.




                                                                             19
                            PRAYER FOR RELIEF

      For the reasons stated above, Appellant prays that this court will

amend, correct and/or modify the Judgment or, in the alternative, the

cause will be remanded and reinstated on the trial docket, and for such

other and further relief to which Plaintiff may be justly entitled.




                    CERTIFICATE OF COMPLIANCE

     I hereby certify that Appellant's brief is in compliance with the
Texas Rules of Appellate Procedure. The word count is 3,927.



                                      Car os Eduardo Cardenas
                                      Attorney for Appellant


                                          Respectfully submJtted,



                                          Carlos Eduardo Cardenas
                                          Texas Bar No. 03787700
                                          717 E. San Antonio, 3rd Floor
                                          El Paso, TX 79901
                                          Tel. No. (915) 544-7860
                                          Fax No. (915) 532-4768
                                          Attorney for Appellant




                                                                          20
                            Certificate of Service

    The undersigned hereby certifies that on this the 17th day of
May, 2018 a true and correct copy of the foregoing instrument was
forwarded to all parties as follows:

Sergio Estrada, Assistant City Attorney
P.O. Box 1890
El Paso, Texas 79950-1890
Fax: (915) 212-0034
Email: EstradaSM@elpasotexas.cov




                                             Carlos Eduardo Cardenas




                                                                       21
              Eighth District of Texas

                   El Paso, Texas

***********************************************

          Caples Land Company, L.L.C.,

                                 Appellant,
                          vs.

           The City of El Paso, Texas and
      Its Building and Standards Commission,

                                 Appellees.

***********************************************

    Appealed from the 327th Judicial District Court
               El Paso County, Texas

***********************************************

               Appellant’s Appendix

***********************************************
El Paso-·County - 327th District Court
                                                                                             Filed 10/19/2017 5:09 PM
                                                                                                     Norma Favela Barceleau
                                                                                                                 District Clerk
                                                                                                              El Paso County
                                                                                                               2016DCV2118
                                         IN THE DISTRICT COURT OF EL PASO, TEXAS
                                                  327t1i JUDICIAL DISTRICT- - - - - -- -- --              -   -

             CAPLES LAND COMPANY, LLC                     §
                                                          §
                      Plaintiffi'Petitioner,              §
                                                          §
             vs.                                          §      Cause No. 2016DCV2118
                                                          §
             THE CITY OF EL PASO, TEXAS and               §
             its Building and Standards Commission        §
                                                          §
                     Defendant/Respondent.                §


                                                   FINAL JUDGMENT

                     The property made the subject of this Final Judgment is located at I 05 N. Oregon, El

             Paso, Texas, 79901, and is commonly known as the American Furniture Building ("Property"),

             and which is more particularly described as follows: Legal Description: A part of Lots 32 and

             33, Block 6, as shown on the map or plat of the town of El Paso, Made by Anson Mills in EI

             Paso County, Texas, described by metes and bounds hereto and made a part thereof.

                     On May 5, 2016, after notice and hearing, the Building and Standards Commission of the

             City of El Paso adopted an Order ("Commission' s Order") regarding the Property. On June 3,

             2016, Caples Land Company, LLC, also known as Caples Land Company, L.L.C., filed a

             Petition for Judicial Review and Writ of Certiorari. This Court granted the Petition for Judicial

             Review, and issued a Writ of Certiorari directed at the Commission to review its decision and the

             grounds relied upon.

                     Upon consideration of the pleadings presented in this case, the Commission's

             administrative hearing records, including the transcripts, memorandums, orders, and having

             heard the arguments of counsel for both parties, the Court finds good cause to enter this Final




             16-1005-1333/723384/Final Judgment
amount of the civil penalty assessed. The daily civil penalty amount is modified from $1,000.00

per day to $500.00 per day; this is the only modification ordered by the Court to the

Commission's Order.

        The Court further finds that the Property is owned by Caples Land Company, LLC, and

that William D. Abraham (a.k.a Billy Abraham) is the managing partner and registered agent of

Caples Land Company, LLC, and that William D. Abraham is the sole or main decision-maker

for all issues and matters concerning the Property.

        It Is Therefore ORDERED, ADJUDGED, and DECREED that the Commission's

Order of May 5, 2016 regarding the Property, which is located at 105 N. Oregon Street, El Paso,

Texas, 79901, is legal, enforceable, and final, except as modified below by this Final Judgment.

        It Is Further ORDERED, ADJUGED, and DECREED, that the City of El Paso,

Texas, shall have and recover civil penalties from Caples Land Company, LLC, in the total

amount of $1,242,486.15, which includes prejudgment interest through the signing of this Final

Judgment. Interest shall continue to accrue on this Final Judgment at a rate of 10% per year until

paid.

        It Is Further ORDERED, ADJUDGED, and DECREED, that the City of El Paso,

Texas have and recover all writs and processes necessary to carry out and enforce the relief

granted by this Final Judgment, including Writs of Executions. Notwithstanding any other

language in this document, the City of El Paso is expressly not compromising, settling, or

releasing any claims for taxes, liens, penalties, fines, fees, or the like, if any, that are or become

due and owing.




16· 1005-1333/723384/Final Judgment




                                                                                                         - ·-·'
       It Is Further ORDERED, ADJUDGED, and DECREED, that the City of El Paso,

Texas may file this Final Judgment in the real property records of El Paso County, Texas, and

that the City of El Paso, Texas may perfect a lien against the Property.

       It Is Further ORDERED, ADJUDGED, and DECREED, that pursuant to Section

54.040, of the Texas Local Government Code, abstracts of judgment are hereby ordered against

Caples Land Company, LLC, and also against William D. Abraham.

       It Is Further ORDERED, ADJUDGED, and DECREED, that Caples Land Company,

LLC, and William D. Abraham, shall provide notice of this Final Judgment to any subsequent

holder, successor in interest, purchaser, or owner, and inform such subsequent holder, successor

in interest, purchaser, or owner that they will be bound by the terms and conditions of this Final

Judgment.

       It Is Further ORDERED, ADJUDGED, and DECREED, that nothing in this Final

Judgment shall prohibit the City of El Paso from continuing to perform its governmental

functions with regards to the Property, including, but not limited, to code enforcement actions.

The City of El Paso, Texas may also continue to assess fines and pursue civil penalties for

violations not covered by this Final Judgment.

       It Is Further ORDERED, ADJUDGED, and DECREED, that Caples Land Company,

LLC, and William D. Abraham, must comply with the Commission's Order within 90 days of

the signing of this Final Judgment, and must vacate the property of all current tenants within 60

days of the signing of this Final Judgment. Caples Land Company, LLC, and William D.

Abraham, shall cause to be delivered a copy of this Final Judgment to all current tenants of the



all current tenants of the Property.




16-1005-1333n23384/Final Judgment
       It Is Further ORDERED, ADJUDGED, and DECREED, that this Final Judgment

resolves all challenges to the Commission's Order. Thus, all relief not granted herein is denied.


       SIGNEDon          Oat           !'8   ,2017




 16-1005- 1333/723384/Final Judgment
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                                                                                I hereby certify that this instrument was filed on the date and time stamped \
                                                                                hereon by me and was duly recorded by document number in the Official :
                                                                                Public Records of Real Prop erty In E l Paso County.-                        '



                                                         ·._:·'        :~                                   { ; ) ~ ~,t, ;_e,t, ,.
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                                                          ·.:•    ..             EL PASO COUNTY, TEXAS


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El Paso County - 327th District Court                                                                      Filed 3/21/2018 4:13 PM

                          -                                                                                        Norma Favela Barceleau
                                                                                                                              District Clerk
                                                                                                                           El Paso County
                                                                                                                            2016DCV2118



                                           IN THE DISTRICT COURT OF EL PASO, TEXAS
                                                    327TH JUDICIAL DISTRICT

                    CAPLES LAND COMPANY, L.L.C.                       §
                                                                      §
                               Plaintiff7Petitioner,                  §
                                                                      §
                    vs.                                               §       Cause No. 2016DCV2118
                                                                      §
                    THE CITY OF EL PASO, TEXAS and                    §
                    Its Building end Standards Commission,            §
                                                                      §
                              Defendant/Respondent.                   §


                                                       JUDGMENT NUNC PRO TUNC

                              The property made the subject of this Final Judgment is located at 105 N. Oregon, El

                    Paso, Texas, 79901, and is commonly known as the American Furniture Building (''Property"),

                    and which is more particularly described as follows: Legal Description:

                          6 MILLS 112 FT ON OREGON X 120 FI' ON E SAN ANTONIO (94,080 SQ FT
                          oflmproveme11ts only, land is not induded) Also known a1; The aoutherly 112'
                          of the Euterly 120' of Block 6, Mills Addldon City of El Paso, Texas AJso known
                          as; Improvanents upon a part ofLotl 32 and 33, Block 6, &1 lhown on the map or
                          plat of the town of El Paso, made by Anson Milli In El Paao County, Teus, described
                          by metes and bounds as follows:

                          BEGINN1NG at a point where the North line of East San Antonio Avenue
                          lntenechl the West One of North Oregon Street; THENCE In a Northerly
                          dlrec:don along the West line of North Oregon Street 112 feet; THENCE at right
                          angles in a Westerly dlrection 120 feet to the East line of alley l1IDDiDg through
                          said Block; THENCE at right angles ln a Southerly direction and along the East
                          line of said alley 112 feet to the North Une of East San Antonio Avenue; THENCE
                          in an Easterly dlrecdon along the North llne of East San Antonio Avenue 120 feet
                          to the West line of North Oregon Street, and the PLACE OF BEGINNING. The
                          said property fl munidpally known and numbered as 105 N, Oregon, FJ Puo,
                          Teua.


                              On May 5, 2016, after notice and hearing, the Building and Standards Commission of the

                   City of El Paso adopted an Order ("Commission's Order'') regarding the Property. On June 3,

                   2016, Caples Land Company, LLC, also known as Caples Land Company, L.L.C., filed a Petition

                   for Re\'iew and Writ of Certiorari. This Court granted the Petition for Judicial Review, and
         It is Further ORDERED, ADJUDGED, and DECREED, that pursuant to Section 54.040,

 of the Texas Local Government Code, abstracts of judgment are hereby ordered against Caples Land

Company, LLC.

         It is Further ORDERED, ADJUDGED, and DECREED, that Caples Land Company,

LLC, shall prO\ide notice of this Final Judgment to any subsequent holder, successor in interest,

purchaser, or owner, and inform such subsequent holder, successor in interest, purchaser, or owner

that they will be bound by the terms and conditions of this Final Judgment.

        It is Further ORDERED, AD.TIJDGED, and DECREED, that nothing in this Final

Judgment shall prohibit the City of El Paso from continuing to perform its governmental functions

with regards to the Property, including, but not limited, to code enforcement actions. The City of El

paso, Texas may also continue to assess fines and pursue chil penalties for violations not covered by

this Final Judgment.

        It is Further ORDERED, ADJUDGED, and DECREED, that Caples Land Company,

LLC, must comply with the Commission's Order within 90 days of the signing of this Final

Judgment, and must vacate the property of all current tenants within 60 days of the signing of th.is

Final Judgment. Caples Land Company, LLLC, shall cause to be delivered a copy of this Final

Judgment to all current tenants of the Property without delay. The City of El Paso may also deliver a

copy of this Final Judgment to all current tenants of the Property.

        It is Further ORDERED, ADJUDGED, and DECREED, that this Final Judgment resolves

all challenges to the Conunission's Order. Thus, all relief not granted herein is denied.

        SIGNED on this     ;;J day of ~                   2018.
