Desilva v. Dist. of D.C., 10–CV–1069.

Citation13 A.3d 1191
Decision Date24 February 2011
Docket NumberNo. 10–CV–1069.,10–CV–1069.
PartiesPeter DeSILVA, et al., Appellants,v.DISTRICT OF COLUMBIA, Appellee.
CourtCourt of Appeals of Columbia District


Elaine J. Mittleman, for appellants.Carl J. Schifferle, Assistant Attorney General, District of Columbia, with whom Peter J. Nickles, Attorney General at the time the brief was filed, Todd S. Kim, Solicitor General, and Donna M. Murasky, Deputy Solicitor General, were on the brief, for appellee.Before REID and FISHER, Associate Judges, and PRYOR, Senior Judge.REID, Associate Judge:

Appellants Peter DeSilva, Joseph Rumber, and Rose Rumber (collectively appellants) appeal the trial court's final judgment in this case in favor of appellee, the District of Columbia. This is yet another case presented to this court involving the redevelopment of the Skyland Shopping Center (“Skyland”) and the condemnation of private property for that purpose by the National Capital Revitalization Corporation (“NCRC”) under the doctrine of eminent domain.1 The federal courts in this jurisdiction also have heard cases pertaining to NCRC and Skyland.2 In addition, we previously considered two appeals in the instant case: Nos. 09–CV–895 and 10–CV–752.3

In the appeal before us, appellants assign multiple errors to the trial court relating to the acquisition of the property at issue and to evidentiary trial court rulings. We affirm the judgment of the trial court in favor of the District for the reasons stated below.


We do not repeat much of the background regarding the history of the condemnation proceeding in this case since we detailed that history both in Oh, supra, and Franco I, supra. The record in this case reveals that pursuant to authority granted to it by the National Capital Revitalization Corporation Eminent Domain Clarification and Skyland Eminent Domain Approval Amendment Act of 2004, D.C. Law No. 15–286, 52 D.C.Reg. 4567 (2005), NCRC filed a complaint on July 8, 2005, to condemn property owned by Mr. DeSilva at 2648 Naylor Road, in the Southeast quadrant of the District of Columbia. Joseph and Rose Rumber were Mr. DeSilva's commercial tenants and they operated a liquor store on the premises. NCRC attached to its complaint a sworn declaration executed by the chief executive officer of NCRC at the time, Anthony C. Freeman, who estimated that “the sum of $600,000[ ] would constitute just compensation” for Mr. DeSilva's property. NCRC provided notice, on November 18, 2005, that it had deposited $600,000.00 into the trial court's registry. On May 8, 2006, the trial court entered an order declaring “that, as of November 18, 2005, legal title to the fee simple interest in the [Naylor Road] Property vested in the NCRC.”

Mr. DeSilva's Answer to NCRC's complaint raised several affirmative defenses which mirrored those in Oh, supra.4 After the trial court struck Mr. DeSilva's affirmative defenses, as the trial court had done in other cases involving Skyland, the trial judge distributed $600,000.00 to Mr. DeSilva from the court's registry on November 1, 2006.

By Fall 2007, NCRC had been dissolved and its authority had been transferred to the Mayor of the District of Columbia. See D.C.Code § 2–1225.01(a) (2010 Supp.). The District proceeded, on October 24, 2007, to amend the complaint that NCRC filed against Mr. DeSilva by adding the Rumbers as defendants. The Rumbers raised a number of affirmative defenses to the complaint and they moved to dismiss themselves as defendants.

NCRC had obtained two appraisals from Millenium Real Estate Advisors, Inc. The first appraisal established the estimated value of the property at $600,000.00 as of September 2004, and the second, dated April 5, 2006, estimated the fair market value of the property at $575,000.00 as of November 18, 2005. Because of perceived flaws in the Millenium appraisal, the District engaged David Lennhoff and PGH Consulting LLC to prepare a new appraisal estimating the value of the Naylor road property as of November 18, 2005. PGH issued a report, dated February 25, 2008, estimating the fair market value of the property as of that date at $285,000.00.

As the litigation unfolded, the motions court, the Honorable Lynn Leibovitz, issued an omnibus order on June 9, 2008, denying the Rumbers' motion to dismiss them as defendants, and granting the District's motion for summary judgment concerning the validity of the taking. Furthermore, in preparation for trial, Mr. DeSilva lodged a motion in limine to preclude the District from introducing the PGH appraisal into evidence. The District sought to prevent any mention of the $600,000.00 that NCRC had deposited in the court registry, and further moved for immediate possession of the Naylor Road property. As we have indicated in note 3, supra, the trial court, the Honorable Anita Josey–Herring, granted the District's motion and ordered the Rumbers to vacate the property; the court's order specified that they would have to leave by December 18, 2009, and in the meantime would have to pay $1,750.00 per month in rent ($10.00 more than the rent established by Mr. DeSilva) to the District. The court also ruled that NCRC's $600,000.00 estimated value could be introduced so long as that number was not linked to the District. The court later revised its ruling to exclude the $600.000.00 (pre-condemnation sum placed in the court's registry as just compensation) but indicated that Mr. DeSilva could present opinion testimony as to the value of his property.

Evidence introduced at trial included testimony by Mr. DeSilva's expert, Alfred B. Riley, Jr., that the fair market value of the Naylor Road property was $680,000.00 as of November 18, 2005, and Mr. Lennhoff's testimony putting the fair market value at $285,000.00 as of that date. The jury returned an appraisement of $304,445.95. Judge Josey–Herring rejected Mr. DeSilva's challenge to the verdict and on June 8, 2010, the court entered a final judgment in favor of the District in the amount of $306,748.54, “which is the sum of the $295,554.54 overpayment of the District's initial deposit [$600.000] ... plus $11,194.00 in rent for the property paid to [Mr.] DeSilva instead of the District after the taking.” Judge Josey–Herring granted the District's motion to amend/correct judgment and on August 16, 2010, amended its judgment “to include judgment against defendants, Rose and Joseph Rumber in the amount of $84,006.00 in favor of the District of Columbia,” covering back rent due and owing.

The Taking Process Issues and the Issues Relating to the Order to Vacate the Property and to Pay Rent

Mr. DeSilva raises three issues regarding the taking process; these issues relate to NCRC's declaration of taking, the statutory quick-take procedure, and the Recorder of Deeds. The Rumbers raise challenges to the trial court's order that they vacate the Naylor Road property and pay $1,750.00 in monthly rent.5 These issues were raised in appellants' interlocutory appeal, No. 09–CV–895. The District filed a motion for summary affirmance of that appeal, arguing that (1) the District properly obtained title to that property under the process set forth in the District's eminent domain statute, D.C.Code § 16–1314 (2001); (2) the trial court did not abuse its discretion by ordering that the Rumbers vacate the Naylor Road property; and (3) the court did not abuse its discretion by ordering the Rumbers to pay $1,750.00 in monthly rent until they actually vacated the property.

We granted the District's motion for summary affirmance on August 19, 2010, and subsequently, we denied appellants' motion for rehearing. Hence, the issues raised in that appeal, including those involving the taking process as well as the trial court's order that the Rumbers vacate the Naylor Road property and pay rent, already have been resolved against appellants and may not be considered in this litigation. See Thoubboron v. Ford Motor Co., 809 A.2d 1204, 1215 (D.C.2002) (citing Lynn v. Lynn, 617 A.2d 963, 970 (D.C.1992) (law of the case doctrine generally forecloses consideration of an issue resolved in a prior appeal)).6

We now proceed to the issues that are properly before us in this appeal.

The Appraisal Issues

Mr. DeSilva contends that the trial court erred by failing to grant his motion in limine to exclude Mr. Lennhoff's PGH appraisal report. The District asserts that the trial court did not abuse its discretion in denying Mr. DeSilva's motion. We review a trial court's rulings on motions in limine to exclude evidence for abuse of discretion.” Oh, supra, 7 A.3d at 1009 n. 21 (citing Coulter v. Gerald Family Care, P.C., 964 A.2d 170, 185 n. 11 (D.C.2009)). “Judicial discretion must ... be founded upon correct legal principles.” Haqq v. Dancy–Bey, 715 A.2d 911, 913 (D.C.1998) (internal quotation marks and citation omitted); see also Johnson v. United States, 398 A.2d 354, 362–63 (D.C.1979) (discussing the exercise of judicial discretion).

Mr. DeSilva advances several specific points regarding the trial court's denial of his motion in limine. First, the PGH appraisal should have been excluded because “it did not comply with pertinent appraisal standards.” Specifically, he asserts that Mr. Lennhoff did not follow the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act (“URA”), 42 U.S.C. § 4651.7 While it appears that the URA is applicable to the District of Columbia,8 the plain words of § 4651 show that the URA policies are relevant before the initiation of condemnation litigation, that is, at the time negotiations commence for the acquisition of land. For example, § 4651(3) uses the phrase [b]efore the initiation of negotiations” and the introductory paragraph to § 4651 specifies that one purpose of the URA policies is “to avoid litigation and relieve congestion in the courts.” One court has stated emphatically:

Section 4651 does not relate to takings by eminent domain. Rather, the...

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4 cases
  • Greene v. Dist. of Columbia, 11–CV–1626.
    • United States
    • Court of Appeals of Columbia District
    • December 6, 2012
    ...out of the Skyland project in Franco v. District of Columbia, 39 A.3d 890 (D.C.2012)( Franco III ),DeSilva v. District of Columbia, 13 A.3d 1191 (D.C.2011), Duk Hea Oh v. Nat'l Capital Revitalization Corp., 7 A.3d 997 (D.C.2010), Franco v. District of Columbia, 3 A.3d 300 (D.C.2010)( Franco......
  • DeSilva v. Donovan, Civil Action No. 14–271 CKK
    • United States
    • United States District Courts. United States District Court (Columbia)
    • February 25, 2015
    ...Plaintiff DeSilva's property by eminent domain was upheld by the District of Columbia Court of Appeals. See DeSilva et al. v. District of Columbia, 13 A.3d 1191, 1193 (D.C.2011). Plaintiffs allege that payments that were made to them “for taking their property and for relocation or closing ......
  • Matthews v. United States, 08–CF–1467.
    • United States
    • Court of Appeals of Columbia District
    • February 24, 2011
    .......         [13 A.3d 1183] Veronice A. Holt, Washington, DC, for appellant.Jonathan P. Hooks, Assistant United States Attorney, with ......
  • Desilva v. Castro, Civil Action No. 14-271 (CKK)
    • United States
    • United States District Courts. United States District Court (Columbia)
    • January 5, 2016
    ...Plaintiffs' arguments disputing the accuracy and reliability of the District's appraisals of the property. See DeSilva v. D.C., 13 A.3d 1191, 1197-99 (D.C. 2011). In that case, Plaintiffs were provided the opportunity to introduce evidence as to the fair market value of the property and to ......

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