Duk Hea Oh v. Nat'l Capital Revitalization Corp., Nos. 09-CV-1267, 10-CV-144.

• Docket Nº: Nos. 09-CV-1267, 10-CV-144.
• Citation: 7 A.3d 997
• Case Date: November 12, 2010
• Court: Court of Appeals of Columbia District

7 A.3d 997

DUK HEA OH, Appellant,
v.
NATIONAL CAPITAL REVITALIZATION CORPORATION, Appellee.

Nos. 09-CV-1267, 10-CV-144.

District of Columbia Court of Appeals.

Argued Sept. 27, 2010.
Decided Nov. 12, 2010.

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Elaine Mittleman, for appellant.

Carl J. Schifferle, Assistant Attorney General, with whom Peter J. Nickles, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and

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Donna M. Murasky, Deputy Solicitor General, were on the brief for appellee.

Before GLICKMAN and THOMPSON, Associate Judges, and SCHWELB, Senior Judge.

THOMPSON, Associate Judge:

In 2005, the Council of the District of Columbia authorized the National Capital Revitalization Corporation ("NCRC") to exercise the power of eminent domain to acquire property at the Skyland Shopping Center ("Skyland"), located on Alabama Avenue, S.E. On July 8, 2005, NCRC filed a complaint to condemn a property at Skyland owned by appellant Duk Hea Oh ("the Property"), which action resulted in a jury trial to determine just compensation. The jury appraised the Property at $160,000 and the trial court confirmed the jury's determination. In this appeal, Ms. Oh contends that the trial court erred in (1) striking her affirmative defense that the taking was pretextual; (2) determining that the date of the taking was November 18, 2005, and ordering her to vacate the Property; (3) excluding evidence of comparable sales and settlements; (4) confirming the jury's appraisement of the Property; (5) ordering Ms. Oh to pay rent to the District in the amount of $1,590 per month commencing on November 18, 2005; and (6) failing to give effect to a (purported) settlement agreement between Ms. Oh and NCRC. We affirm the judgment of the trial court.

I. Background

The Property consists of a building on 0.03 acres located at 2842 Alabama Avenue, S.E., from which Ms. Oh operated a business called Beauty World. Ms. Oh and her late husband purchased the property in 1990.¹

In 1998, the Council of the District of Columbia ("Council") created NCRC as an independent instrumentality of the District of Columbia. D.C.Code § 2-1219.02 (2001) (repealed 2007). Among its "public purposes," NCRC was charged with "induc[ing] economic development and job creation by developing and updating a strategic economic development plan ... [and by] removing slum and blight...." Id. In order to further these public purposes, NCRC had the power to condemn property by eminent domain, provided that the Council authorized NCRC's exercise of eminent domain prior to the time the agency instituted condemnation proceedings. Id. § 2-1219.19(a)-(b) (empowering NCRC to exercise eminent domain); Id. § 16-1311 (empowering the District of Columbia (the "District") to exercise eminent domain).

A. The Skyland Project

In 2004, the Council proposed legislation to allow NCRC to exercise eminent domain to acquire 18.5 acres of property at and around Skyland in order to "engage in comprehensive redevelopment of the site." D.C. Council, National Capital Revitalization Corporation Eminent Domain Clarification and Skyland Eminent Domain Approval Amendment Act of 2004 [hereinafter "Skyland Act"], Bill 15-752 (March 2, 2004). After the bill's introduction, on April 28, 2004, the Council's Committee on Economic Development held a public hearing, during which there was extensive oral and written testimony both in favor of and in opposition to the legislation. See D.C. Council, Report on Bill 15-752 (Nov. 3, 2004).

Subsequent to the public hearing, the Council added to the bill a number of

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findings supporting the exercise of eminent domain: the Council found, inter alia, that the area "is a blighting factor"; that it "is characterized by underused, neglected, and poorly maintained properties"; and that "construction of a new shopping center on the site ... will further many important public purposes." Skyland Act, Bill 15-752, at 6 (Nov. 3, 2004). The Council found those public purposes to include the removal of unsanitary conditions, the reduction of crime, the provision of job opportunities and retail options for residents, and the revitalization of an economically distressed community. Id.

The Council passed the bill on December 7, 2004, the Mayor signed it on December 29, 2004, and it became law on April 5, 2005 after the congressional review period ended. Skyland Act, D.C. Law 15-286; 52 D.C.Reg. 4567 (2005). NCRC proceeded to acquire most of the properties at Skyland through private negotiations and other condemnation actions. See, e.g., Rumber v. District of Columbia and NCRC, 487 F.3d 941 (D.C.Cir.2007); Franco v. National Capital Revitalization Comm'n (Franco I), 930 A.2d 160 (D.C.2007); Franco v. District of Columbia, 3 A.3d 300 (D.C.2010).

B. This Litigation

On July 8, 2005, NCRC filed a "Complaint to Condemn Real Property" with respect to Ms. Oh's property and an attached "Declaration in Support of Complaint to Condemn Real Property." Subsequently, on November 18, 2005, NCRC deposited $160,000 into the court's registry, an amount it described as "representing funds estimated to be just compensation for the Property delineated in the Declaration of Taking filed in this action on July 8, 2005."

After the trial court dismissed Ms. Oh's motion to dismiss the complaint, Ms. Oh filed her answer on November 1, 2005, asserting several affirmative defenses, including that the proposed taking violated the Fifth Amendment because the declared reason for it was "pretextual," in that the taking was actually "for a private purpose and not for a public use or public purpose." NCRC moved to strike Ms. Oh's affirmative defenses pursuant to Superior Court Civil Rule 12(f) and for immediate possession of the Property. In orders signed on March 8, 2006, the trial court declared that legal title to the Property vested in NCRC as of November 18, 2005, and granted both motions.

In October 2007, the District was substituted for NCRC as plaintiff (NCRC having been dissolved by the Council, which transferred NCRC's authority to the Mayor). D.C.Code § 2-1225.01 (2008). After the court had ruled on a variety of pre-trial motions, the matter proceeded to a jury trial in October 2009 on the issue of compensation. The jury determined that the fair market value of Ms. Oh's property at the time of the taking on November 18, 2005, was $160,000, and, on January 15, 2010, the trial court confirmed the jury's appraisement. The trial court also granted the District's renewed motion for possession, directing Ms. Oh to vacate the property by September 1, 2010, and ordering that the amount of back rent that Ms. Oh owed to the District be immediately disbursed to the District from the funds in the court's registry. ² Ms. Oh then appealed, and we consolidated her appeal from the trial court's final order with an appeal she had filed from an earlier interlocutory order.

II. Analysis

A. Striking of Affirmative Defenses

Ms. Oh's answer raised twelve affirmative defenses in response to NCRC's condemnation

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complaint. She asserts on appeal that the trial court erred in striking each of her affirmative defenses, but her brief specifically mentions only two of the defenses: that "the taking of the property was for a private use and not for a public use or public purpose" and that "the taking was speculative, pretextual and/or unnecessary." ³ The court struck the first of these defenses on the ground that Ms. Oh's answer "present[ed] no facts or circumstances from which the Court can conclude that the actions of the City Council and NCRC are anything but an exercise of their lawful authority." The court found it "unclear" what Ms. Oh meant in asserting that the taking of the property was "speculative, pretextual and/or unnecessary," but struck this second defense on the grounds that the Council's determination that the condemnation was necessary to abate blight in the area and to bring about economic development "undermin[ed] any notion that NCRC's actions are unnecessary," and that Ms. Oh had "not presented[,] and there is nothing in the record to suggest[,] that the taking of the property is either speculative or pretextual." ⁴

The Fifth Amendment to the United States Constitution allows the government to take private property for a public use or purpose as long as it pays just compensation.⁵ United States Const. amend. V; Kelo v. City of New London, Connecticut, 545 U.S. 469, 479, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005). In Kelo, the United States Supreme Court explicitly held that "promoting economic development is a traditional and long accepted function of government," which qualifies as a "public purpose" indistinguishable from other public purposes. Kelo, 545 U.S. at 484, 125 S.Ct. 2655. The Kelo Court recognized, however, that a government may not take property "under the mere pretext of a public purpose, when its actual purpose [is] to bestow a private benefit." Id. at 478, 125 S.Ct. 2655. And, while there is a "longstanding policy of deference to legislative judgments in this field," id. at 480, 125 S.Ct. 2655, this court has noted that

there may be situations where a court should not take at face value what the legislature has said. The government will rarely acknowledge that it is acting for a forbidden reason, so a property owner must in some circumstances be allowed to allege and to demonstrate that the stated public purpose for the condemnation is pretextual.
Franco I, 930 A.2d at 169.

This court's jurisprudence instructs that "a motion to strike a defense as insufficient will be denied 'if [the defense] fairly presents a question of law or fact which the court ought to hear.' " Franco I, 930 A.2d at 166 (quoting

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Securities & Exchange Comm'n v. Gulf & Western Indus., Inc., 502 F.Supp. 343, 345 (D.D.C.1980)). Thus, a court should not grant a motion to strike "if the insufficiency of the defense is not clearly apparent, or if it raises factual issues that should be determined on a hearing on...