Urciolo v. Washington
305 A.2d 252
D.C.
1973
Check Treatment

*1 Urciolo, M. J. and Phillie Joseph URCIOLO

Appellants, E. Honorable Walter WASHINGTON

et al., Appellees.

No. Appeals.

District of Columbia Court

Argued 23, 1973. Jan.

Decided June C., Washington, Temple, D. F. James Urciolo, Washington,

with whom J. C., se, brief, appel- pro was on the D. lants. Counsel, Gershenow, Corp.

Earl Asst. A. C. Francis Washington, D. with whom *2 253 Counsel, the condemna- the notice to show cause and Richard W. Corp. and Murphy, that 1972, tion so Barton, Counsel, Washington, prior order to March of Corp. Asst. He did brief, appellees. he could him. for not contest service on D. were on wife, M. his Phillie contest service Urciolo, not she pointing out that was and HAR- KELLY, FICKLING Before on Under- served at her last known address Judges. Associate RIS, city. ac- Street, in He N.W., this wood deceased, Cates, that Mr. since knowledged KELLY, Judge: Associate property agent for the had been the rental 1970, he in of October November 1970, appeal taken 16, acknowledged that no was the Board also On October Buildings of Insanitary order November from the condemnation the Condemnation of 16, protested pending demoli- Cates, prop He 1970. George L. served why insisting he in- property, of that cause tion manager, a notice to show erty Street, vacant N.W., premises tended to rehabilitate Columbia 1409 1968, purpose of in for the of its since November of not because should be condemned was served sale. sanitary The notice condition.1 N.W., Street, Joseph on Mr. Cates at SOI D per- applicable sections the statute of appel place of business. When Urciolo’s

J. taining provide: to service respond the notice to show lants failed to or a condemnation 1967, Any cause the Board served 5-625(a) D.C.Code notice re- § posted copy thereof der on Mr. quired by chapter Cates shall to be served re property.2 Appellants on the failed to by any be deemed when served served in spond to the condemnation order (c) of . following methods: . . 1972, receipt of of letter place March after at usual left residence or that it had directed stating Board person notified business of the be demolished, they re property that be person age with a of suitable and discre- quested stay demolition. Board to employed tion then therein resident 1972, 26, April appel After a denied, request

lants’ was and their subse un- 1967, (b) 5-633 Wherever D.C.Code quent de motion to likewise reconsider was 5-616 to 5-634 . . der sections . applied Supe nied. then owner, given, notice is to be an . temporary restraining rior for a or Court agent of may given to an such notice be der, alleging (1) that action inter alia other- rent or such owner who collects denying stay the Board in of demoli in the owner agent wise as an acts arbitrary capricious, (2) tion was property. with said connection that service of the cause and notice show of the deficient. condemnation order was quoted app sec reading

This above from the denial On it that service together, tions is clear lication.3 and of the condemna notice to show cause the hearing on the motion for tem- Cates, agent for rental tion order Mr. porary restraining order Urciolo stat in with premises, accordance J. he re- informed the court could not law. agency ute and with decided consistent whether or not he aware of Meigs, member See, Capital Realty v. g., e. Co. View 1967, practical purposes 5-618. to render for all appellant’s or where cause of action moot Id rights irretrievably review.” be lost absent will rigan Sigler, Ber v. Chairman Parole, al., 918 re- et 475 F.2d The denial of motion for straining appealable (D.C.Cir., 1978). only where, here, “the denial stances serves 254 Trinity Mc

D.C.Mun.App., play. ment (1952); 92 A.2d 765 considerations into Duane, Church, A.2d Hugh D.C.Mun.App., v. 53 v. Radio Methodist Federal South appellants’ Com’n, consequence, App.D.C. As 61 (1947). F.2d cert. denied, fail. claim defective service must 76 L.Ed. U.S. S.Ct. Keyes Madsen, (1932). See also *3 appellants is It likewise clear that 24, U.S.App.D.C. (1949), F.2d 40 cert. right appeal failed to their the exercise to denied, 628, 928, L.Ed. 339 U.S. S.Ct. condemnation order either to the Condem (1950). Superior nation Review Board4 to the or sum, appellants In made conclude that we question Court.5 Thus the of whether or they showing no in the that were trial court property not the was in fact in an insani injunctive Accordingly, to entitled relief. pre tary is condition condemned now tempo- denying the order the motion for Supp., cluded and 5-629 D.C.Code § rary restraining is order jurisdiction cannot confer in the trial court over present of action cause Affirmed. alleged statutory is complaint. in the The procedures by Congress are ex established HARRIS, Judge (concurring Associate clusive. part in part) and in : dissenting they de claim were fully I agree that the properly trial court hearing nied a fair before denied the motion for a temporary restrain- the stay prop motion to demolition the ing However, order. merely rather than erty support find we the record does not affirming merits, on the I would dismiss They claim. assert that their also appeal. the property being just is taken without com pensation process How due of law. Appellant Joseph attorney. Urciolo is an ever, the property the demolition of here record, As I read the acknowledged he only a legitimate incidental exercise of to having notice of the November or- governmental power appro and not a direct der of against condemnation directed the priation which Fifth Amend- bring would property in question.1 He further testified provides per- 5-628, in D.C.Code § owner receives notice that such order of part: tinent by condemnation has been reviewed Any by property owner of affected an Condemnation Review Board established order of condemnation . . . shall be in accordance with section 5-617 by entitled to review of such order by Board, been affirmed or modified such Condemnation Review Board established Superior to the Court of the Dis- by the Commissioners in accordance with trict of Columbia for the modification or provisions 5-617, upon of section vacation of said order of condemnation. making application said Superior to Condemnation The Court of the District Board, writing, Review in within fifteen precedence give any Columbia shall to days from the date which such case, owner testimony such shall hear ad- lias been served therein, notice of such order of building duced shall view the condemnation, upon payment of a by fee affected said order con- of $25. The demnation, said Condemnation Review affirm, and thereafter shall by modify, Board shall be authorized the Com- any pro- or vacate said order. In affirm, modify, to ceeding missioners or vacate instituted in accordance with the any provisions order of condemnation issued under subsection, pro- of this such authority ceeding contained sections 5-616 by judge shall be conducted to 5-634. only, nothing herein contained shall be authorizing entitling construed as or Supp., Appeal 5. D.C.Code 1972 property 5-629. by owner of affected such order Superior by Court —Modifica- jury. condemnation trial order — tion or vacation court. part building The owner challenge validity Ilis to the of service on building provisions wife, condemned under his a co-owner of the may, of sections 5-616 to 5-634 fif- within frivolous. days teen from the date on such which circumstances, tempo- the denial of review seek he he could knew eminently restraining rary days of within 15 condemnation order 5-628, proper. thereof, service review, he had if to seek he elected not restraining remedy the which to six months within before the trial court’s order was conducted issu- which caused sanitary conditions Judge in the conclusion Chambers. ap- not to His decision ance of the order. thereof, appellants: the court advised Review Board peal to the Condemnation “ you may apply . . still Court . expressed in- voluntary, an based time, preliminary injunction, at which repair premises. tent evidentiary hear- a full the Court will hold pursue not their ing.” Appellants chose finality legal Total had attached to *4 preliminary injunc- right hearing to a a on by No- the end of order of condemnation tion, immediately to this court and came to steps no vember, took instead. repair considerably more the passed. than allowed months When the six authority the to review final We have appellants that finally notified Court, Superior orders the (by letter building was to be demolished (a)(1). also have Supp., 11-721 We sought 1972), appellants March dated interlocutory authority to orders review supposedly they further within time which re Superior grant Court which seeking repairs. make In the letter would injunctions. Supp., fuse D.C.Code 1972 17, 1972), appel- (dated such March relief (A). authority such (2) 11-721 No (a) challenge original lants did not upon respect tem been conferred us with to simply they way; condemnation in is alto porary restraining This orders. pre- As asked for more time. noted gether proper, principally (1) orders since ceding request en- opinion, appellants’ was restraining deciding temporary motions for Board, fully re- tertained was typically orders based records are j ected. best, may cursory they (2) which at are days.2 granted not be for than ten more Appellants’ Temporary for Re- “Motion straining Preliminary Injunc- Order and that ab It is well settled and sound both May tion” was filed in the trial court on circumstances, rulings extraordinary sent any legal argu- To extent ap are not restraining on orders thereof, part ments were advanced a McClellan, McSurely pealable. See, v. g., e. arguments essentially such a constituted (1970); U.S.App.D.C. F.2d long- legality collateral attack Riner, Cir. (5th Dilworth 343 F.2d v. since final condemnation order of Novem- un 1965). it there was is true that While ber hearing the tem- certainty exactly the actual as to porary (which held restraining order place (the contract demolition would take day filed), same like- motion was no by a letter confirmed for the demolition was lihood whatsoever was of success shown be May 5 was to of the Board dated one (if merits indeed could even deter- appellants had days), performed within 90 point mine what on the merits was before the build year half that known and a for Appellant court). trial Urciolo in subject unless its ing was to demolition “all asking stated that I’m chance [the] my sanitary corrected. In condition were repair,” “asking he was further that presented do not view the circumstances justice Court for allow me sufficient rule of general warrant deviation rulings non-appealability on motions Considering time in all which do it.” 65(b) injunctive handling authorize Oiv.R. 12-1. Rule does 2. The of motions by Super. governed specifically TRO under certain an extension relief Super.Ct. generally by circumstances. Ct.Civ.R. 65 and temporary restraining orders. I believe pursue failure ruling obtain a on their motion for

preliminary injunction jurisdictionally

fatal, and that be should dis-

missed.3 BANKS, Appellant,

Ricardo STATES, Appellee.

UNITED

No. 6453. *5 Appeals.

District of Columbia Court of

Argued Feb.

Decided June Washington, D. Weinberg,

Robert M. court, appellant, Rob- appointed undoubtedly during carefully thus Their time considered made additional appellants, appealing cheaply by bought tactic their so since no the denial of regrettably suggestion motion for a been mootness has been filed with TRO has successful, meantime, pending for the In the case been us. year. apparent sanitary building this court It has continued to be blight neighborhood. repairs the needed have not been further