Mamo v. District of Columbia, 06-CV-845.

• Decision Date: 18 October 2007
• Docket Number: No. 06-CV-1007.,No. 06-CV-845.,06-CV-845.,06-CV-1007.
• Citation: 934 A.2d 376
• Parties: Eyob MAMO, et al., Appellants, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

934 A.2d 376

Eyob MAMO, et al., Appellants, v. DISTRICT OF COLUMBIA, Appellee.

No. 06-CV-845.

No. 06-CV-1007.

District of Columbia Court of Appeals.

Argued September 13, 2007.

Decided October 18, 2007.

Harry C. Storm, with whom William A. Goldberg, Bethesda, MD, was on the brief, for appellants.

Richard S. Love, Senior Assistant Attorney General, District of Columbia, with whom Eugene A. Adams, Interim Attorney General at the time the brief was filed, Todd S. Kim, Solicitor General, and Edward E. Schwab, Deputy Solicitor General, were on the brief, for appellee.

Before FARRELL, REID and FISHER, Associate Judges.

REID, Associate Judge:

In this case, appellee, the District of Columbia, exercised its power of eminent domain to take property on which appellants, Eyob Mamo and DAG Petroleum III, Inc. ("Mr. Mamo" or "Mamo/DAG" or "DAG Defendants"), operated a gas station and convenience store franchise. Mr. Mamo complains that the trial court's judgment in favor of the District violated his constitutional Fifth Amendment right to just compensation because: (1) he received no compensation for his franchise, business and goodwill; and (2) the District is estopped from denying him such compensation. Discerning no error, we affirm the judgment of the trial court.

FACTUAL SUMMARY

The record shows that, as of 2006, Mr. Mamo had been involved in the motor fuel business for about twenty years. He was a gas service station dealer/franchisee with Amoco Oil Company (now BP Products North America, Inc. ("BP")), and later, also a Shell motor fuel distributor through a Shell affiliate. He and the company in which he is the sole shareholder, DAG, obtained the right to operate the Good Hope Amoco gas station and convenience store (located at 1234 Good Hope Road, in the Southeast quadrant of the District) in 1996, through a renewable franchise agreement with Amoco/BP, and he continued to conduct his business there until the District prepared to take the property for the purpose of constructing a municipal office building.

In early July 2004, the then Mayor of the District, Anthony A. Williams, executed a Declaration of Taking for the Good Hope Road land and improvements which housed Mr. Mamo's business. The Declaration specified that $680,000 was the estimated just compensation for the taking of "the Property, including all interests therein." Paragraph 19(l) of Mr. Mamo's franchise agreement provided that BP could "terminate or nonrenew" his agreement in the event of "[c]ondemnation or other taking, in whole or in part, of the facility pursuant to the power of eminent domain." BP sent a letter to Mr. Mamo on May 18, 2003, terminating and nonrenewing his franchise agreement, "effective ten (10) days prior to the date of condemnation or date of sale in lieu of condemnation." On July 2, 2004, the District filed against BP and others a civil complaint in condemnation pursuant to the Declaration of Taking, and an amended complaint on October 1, 2004 (Appeal No. 06-CV-845).

Mr. Mamo lodged an answer and counterclaim on October 25, 2004, alleging a "taking" of his "property," "the Good Hope Amoco Business, including the franchise, leasehold interest and goodwill." As affirmative defenses, he cited the Fifth Amendment to the Constitution; D.C.Code § 16-1314 (2001) (concerning condemnation procedures and transfer of title); and estoppel. His counterclaim asserted, in part: "By letter dated October 27, 2000 . . ., the [District], through its Department of Housing and Community Development, advised the Mamo/DAG Claimants that they would `be properly compensated for [their] leasehold interest; [their] business; and goodwill' upon any condemnation." Mr. Mamo demanded just compensation of $500,000 for the District's alleged taking of his property. Subsequently, in response to the District's motions, the trial court (the Honorable John M. Campbell) granted possession of the Good Hope Road property to the District in January 2005, and dismissed Mr. Mamo's counterclaim in March 2005.

On March 15, 2005, the District filed a motion in limine to preclude Mr. Mamo from introducing evidence relating to the market value of his Good Hope Road business, on the ground that the District could only compensate for a taking of "property," and thus could not pay the value of Mr. Mamo's business. Judge Campbell denied the District's motion in April 2005, but the District filed a motion in May 2005 to vacate the denial, alleging that Mr. Mamo was not entitled to consequential damages under D.C.Code § 16-1311¹ and relevant case law. Mr. Mamo opposed the motion.

In August 2005, the District and BP lodged a joint application for the distribution of $722,180 to BP from the Court's Registry.² On October 20, 2005, Judge Campbell ordered that the funds be distributed to BP. Mr. Mamo's opposition to the distribution of the funds, filed on October 24, 2005, indicated that the Registry funds were earmarked to compensate "all interests" and "`all persons entitled' to such compensation." In its October 27, 2005, reply to Mr. Mamo's opposition, BP took the position that the District and BP lawfully agreed on BP's compensation pursuant to D.C.Code § 16-1314,³ and that "the DAG [D]efendants are currently litigating with the District the issue of whether they are entitled to their own award by virtue of the closing of their business." BP also maintained that the District's position is that Mr. Mamo is not entitled to such compensation; and further, that "the DAG Defendants' franchise agreement explicitly provides that they have no right to share in any condemnation proceeds received by BP," under Paragraph 25 of the agreement ("Unless otherwise provided by law, Lessor is entitled to the full amount of any award or proceeds for condemnation or other taking of the premises, in whole or in part, pursuant to the power of eminent domain or pursuant to a conveyance in lieu of condemnation.").

After reviewing additional case law, Judge Campbell issued an order on April 24, 2006, vacating his previous order and granting the District's motion in limine relating to its condemnation lawsuit; he concluded that Mr. Mamo could not recover damages "for the fair market value of [his] business, including such interests as good will." Consequently, he granted the District's motion to vacate his original order. The District submitted its motion for partial summary judgment on April 24, 2006, seeking judgment as a matter of law on the issue of Mr. Mamo's "entitle[ment] to just compensation for consequential damages to [his] Amoco business franchise and convenience store. . . ." On June 27, 2006, the Honorable Robert E. Morin issued an amended order (correcting certain typographical errors in his June 21, 2006 order) which treated Judge Campbell's order pertaining to the District's motion in limine not merely as a pretrial evidentiary ruling on the admissibility of certain evidence, but rather, as a decision on the same legal issue raised in the District's motion for partial summary judgment (that is, Mr. Mamo's entitlement to consequential damages under the Fifth Amendment). Judge Morin considered that decision as having "sufficient finality" and declined to revisit it. He also addressed Mr. Mamo's estoppel contention, concluding that even if the District made the representations alleged by Mr. Mamo, "[t]he purported `injury' suffered by [him] as a result of these representations is at best amorphous," and even viewing the averments in the light most favorable to him, "Mr. Mamo makes no showing of any specific injury by Defendants."

A few days later, Judge Morin entered a consent order and final judgment, signed by counsel for BP and the District, which specified, in part, that (1) the $722,180 paid to BP "shall be just and full compensation, inclusive of all prejudgment interest, for the [ ] taking of all right, title and interest in and to the [Good Hope Road] Property . . . ."; and (2) "the Court having granted summary judgment to the District on the Mamo/DAG claim for compensation for the loss of the value of their business by Order entered June 21, 2006, Defendants Mamo/DAG have no leasehold interest, and the only interest to be compensated as a result of the Plaintiff's taking is that of Defendant BP Products North America, Inc., the former owner. . . ."

The court thereafter focused its attention on Mr. Mamo's lawsuit against the District, filed on February 17, 2006 (Appeal No. 06-CV-1007). Count 1 alleged a violation of the Fifth Amendment to the Constitution, and Count II asserted detrimental reliance. Paragraph 18 of the complaint declared: "The Good Hope Amoco Business, including its goodwill and franchise interest is `property' for which the Mamo/DAG are entitled to just compensation pursuant to the Constitution of the United States, Amendment V, and the District through its actions is estopped from denying the entitlement of Mamo/DAG to such compensation." Judge Morin granted the District's motion to dismiss "on the basis of res judicata and/or collateral estoppel, because the Court has previously decided the same issue Plaintiff uses as a basis for the compensation in this case."

Mr. Mamo filed appeals concerning both the District's and his own lawsuit. This court consolidated his appeals.

ANALYSIS

Mr. Mamo contends that the trial court erred by granting summary judgment to the District in the case brought by the District, and in dismissing his lawsuit. He argues that the court violated his constitutional Fifth Amendment right by "denying [him] just compensation for [his] franchise, business and goodwill destroyed by the District's condemnation of the [Good Hope Road] Property." The District maintains that neither District law, nor the Fifth Amendment to the Constitution, requires the payment of consequential damages or damages for business losses in eminent domain or Fifth Amendment taking cases.

Summary Judgment and Mr. Mamo's Fifth Amendment Claim

We review...