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
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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
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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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hereon by me and was duly recorded by document number in the Official :
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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.