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Peter Desilva, et al v. District of Columbia

February 24, 2011


Appeal from the Superior Court of the District of Columbia (CAE5336-05) (Hon. Anita M. Josey-Herring, Trial Judge) (Hon. Natalia M. Combs Greene, Motions Judge) (Hon. Lynn Leibovitz, Motions Judge)

The opinion of the court was delivered by: Reid, Associate Judge:

Argued February 2, 2011

Before REID and FISHER, Associate Judges, and PRYOR, Senior 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.*fn1 The federal courts in this jurisdiction also have heard cases pertaining to NCRC and Skyland.*fn2 In addition, we previously considered two appeals in the instant case: Nos. 09-CV-895 and 10-CV-752.*fn3

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.*fn4 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 ...

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