Anna Masszonia v. Walter E. Washington

476 F.2d 915, 155 U.S. App. D.C. 159, 1973 U.S. App. LEXIS 11452

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 27, 1973
• Docket: 71-1164
• Status: Published

Opinions

JAMESON, District Judge:

This is an appeal from an order denying a motion for a preliminary injunction and the appointment of a receiver ancillary thereto. The order of the district court entered January 26, 1971, 321 F.Supp. 965, contains detailed findings of fact which are not questioned on this appeal. Two issues are presented: (1) whether the district court erred in denying the motion, and (2) whether by reason of events intervening since the order was entered the case has become moot and should be dismissed.

Factual Background

The appellant Anna Masszonia, a disabled, low-income, welfare recipient, was tenant in a Washington, D. C. substandard apartment complex owned by ABC Realty Co., Inc.¹ From 1961 through 1967 ABC Realty operated the complex under a license issued by the Department of Licenses and Inspections for the District of Columbia, without, however, applying for Certificate of Occupancy. Because of unabated housing regulation violations,² applications for a renewal of the license for 1968 and subsequent years were denied on February 3, 1970, and the denials were sustained by the District of Columbia Board of Appeals and Review on May 20, 1970.

.On February 26, 1970 a tenant commenced a class action against ABC Realty seeking to recover rents from 1961.³ Some of the tenants began withholding their rent while others continued paying rent until their June, 1970 rent payment was returned to them. About the time the action was commenced ABC Realty ceased to pay water, gas and electricity bills for the complex, which resulted in termination of water service on May 19, 1970 and threatened termination of gas and electricity.

This class action was filed May 22, 1970 by appellant Masszonia on her own behalf and on the behalf of all tenants similarly situated against Walter E. Washington, Commissioner of the District; the Water Registrar of the District; and the president of ABC Realty, seeking equitable relief that the utilities be continued. In amended complaints ABC Realty⁴ and the two utilities were added as defendants.

By order entered July 29, 1970 (opinion at 315 F.Supp. 529) the Commissioner and his subordinates were enjoined from refusing to provide water and sewer service and from refusing to enter into contracts with the utilities to provide gas and electricity, pendente lite, so long as the tenants lawfully occupied the premises, the court holding that it was the duty of the District of Columbia under District of Columbia Code, Section 5-313 (1967) to provide these services on a temporary and emergency basis.⁵

Between July 24 and July 27, 1970 the District served the tenants with orders to vacate the premises by August 3, 1970. On August 3 the district court enjoined the Commissioner and his subordinates from prosecuting any tenant for failure or refusal to vacate his apartment, and ordered the Commissioner to provide relocation services to the tenants within two weeks.

On August 14, 1970 the appellant Masszonia moved for a preliminary injunction under a supplemental complaint, seeking the appointment of a receiver and an order requiring the Commissioner to make necessary repairs and assess a tax on the property for the costs.

Order of January 26,1971

The order of January 26, 1971 enjoins appellees,⁶ pending appeal, from prosecuting or attempting to evict any tenant and requires appellees, pending appeal, to furnish utility services and provide the tenants with relocation services. The court refused to appoint a receiver and refused to order appellees to make the repairs sought by appellants.

The order of January 26, 1971 adhered to the court’s conclusion in the July 29, 1970 order that “where low-income tenants who cannot immediately relocate face the imminent failure of essential utility services which are the landlord’s responsibility, and the landlord is beyond the effective power of the Court, it is the duty of the District of Columbia under District of Columbia Code, Section 5-313 (1967) to provide these services on a temporary and emergency basis.”⁷

The court held further that Section 5-313 “confers only a discretionary authority upon the Commissioner”⁸ to correct conditions existing in violation of law or regulation, and the court could not hold as a matter of law “that it would be an abuse of that discretion to fail to provide those utilities on a permanent, continuing basis or to fail to make the extensive repairs sought in this Motion for a Preliminary Injunction, the ultimate, permanent relief sought in the Supplemental Complaint.”⁹

Events Subsequent to January 26, 1971 Order

On April 19, 1971 (after the record and appellants’ brief had been filed in this court) appellant Masszonia filed in the district court a “motion to modify the injunction pending appeal entered January 26, 1971” to order the defendant Washington to terminate the utility services and secure the buildings at 1401 and 1405 Girard Street, N.W., and to require proper securing of the buildings at 2804 Fourteenth St., N.W. in compliance with the January 26, 1971 order.¹⁰

Pursuant to this motion, the district court on April 22, 1971 ordered the Commissioner “to immediately secure the premises at 2804 Fourteenth Street, N.W. to prevent further access thereto * * * ”, to terminate the utilities at 1401-1405 Girard Street, N.W., and to “proceed immediately to make said premises secure by boarding up basement and first floor doors and windows and blocking fire escapes.” The Commissioner was also authorized to proceed with normal condemnation procedures with respect to the premises at 2804 Fourteenth Street, N.W. He was “enjoined to take no other or further action in any way affecting the premises at 1401 and 1405 Girard Street, N.W., without further order” of the court.

On June 29, 1971 the district court, upon the motion of plaintiffs, vacated nunc pro tunc as of January 26, 1971 the paragraph of the January 26 order requiring the deposit of plaintiffs’ public assistance rent allotments into the Registry of the Court.

Issue of Mootness

Subsequent to oral argument, appellees filed a “Suggestion of Mootness”, with supporting affidavits, from which it appears that following the order of April 22, 1971 the premises at 2804 Fourteenth Street, N.W. were condemned and razed, and the premises at 1401-1405 Girard Street, N.W. were barricaded; that the Girard Street property has not since been inhabited, and is “uninhabitable by reason of its insanitary and structurally defective condition;”¹¹ and that all tenants seeking assistance were relocated.¹²

Appellees contend that “against this background”, the “appellants have effectively abandoned the plainly uninhabitable Girard Street property, without likelihood or right of return and that they currently have no possessory interest in that property.” Accordingly they argue that the case should be remanded to the district court with directions to vacate its order of January 26, 1971 and to dismiss the case as moot.¹³

In her original and supplemental complaints and motion for a preliminary injunction, appellant Masszonia seeks an injunction which would require the Commissioner to (1) provide utilities on a permanent, continuing basis and (2) make whatever repairs might be necessary to bring the three buildings into compliance with the housing regulations. Ancillary thereto appellants seek the appointment of a receiver to take charge of the property and manage it, pendente lite. When the complaint was filed 66 units of the apartment complex were occupied. All were vacated prior to the district court’s order of April 22, 1971. Subsequent thereto the building at 2804 Fourteenth Street, N.W. was demolished, as authorized in the April 22 order. Under this order, however, the Commissioner was enjoined “to take no other or further action in any way affecting the premises at 1401 and 1405 Girard Street, N.W. without further order” of the court. If the district court finds, as stated in appellees’ affidavits, that these premises are now uninhabitable, barricaded, and scheduled for demolition, it would appear that the district court should revoke this provision of the April 22 order and dismiss the action as moot.¹⁴

We conclude that the questions here on appeal have become moot and do not reach the merits of the controversy.¹⁵

This appeal is dismissed as moot and the case is remanded to the district court for further proceedings consistent with this opinion.

1 . The complex consisted of three six-story apartments located at 2804 Fourteenth Street, N.W., and 1401 and 1405 Girard Street, N.W. Approximately 66 units were occupied at the outset of this litigation.

2 . The court found' that a “substantial number of housing regulation violations” had been noted from 1966 to July 21, 1970, when 1,053 unabated violations were noted in the three building complex, the violations consisting of “leaking ceilings, falling plaster, broken windows, inadequate locks, absence of shades and screens, backed-up and broken plumbing fixtures, insufficient heat and hot water, holes in walls, accumulations of trash, rats and roaches” which were “so numerous, extensive and substantial that the buildings constitute a danger to the health and safety of the occupants.” 321 F.Supp. at 968.

3 . Mitchell v. ABC Realty Co., Civil Action No. GS 3522-70 District of Columbia Court of General Sessions.

4 . The court found that ABO Realty had been served with all pleadings but had not entered an appearance. The court found further, however, that personal service had not been effected on its president and registered agent and that attempts to locate its officers had failed. 321 F.Supp. at 967.

5 . The action was dismissed as to the two utilities. 315 F.Supp. 529, 530-531. At 533, the court noted that “the District may recoup any money expended for providing utilities by assessing a tax against the property. It may of course, also recoup by levying fines against the owner.”

6 . Appellees are the Commissioner and the Water Registrar of the District of Columbia. As noted stipra (Note 4), ABC Realty, Inc. and Lyman C. Delle, its president, were not personally served and did not enter an appearance. Nor have they participated in this appeal. Their liability to the tenants and to the District of Columbia is not before this court. On the merits, this appeal concerns solely the duty of the District of Columbia to appellants to act upon the failure of ABC to correct conditions existing in violation of the law.

7 . 321 F.Supp: at 970.

8 . Section 5-313, D.C.Code 1967, provides that when the owner of real property fails or refuses after reasonable notice to correct conditions existing in violation of law or regulation, “the commissioners of the District of Columbia may, and they are authorized to, cause such conditions to be corrected; assess the cost of correcting such conditions and all expenses incident thereto * * * as a tax against the property on which such condition existed * * * and carry such tax on the regular tax rolls of the District, and collect such tax in the same manner as general taxes in said District are collected * *

9 . 321 F.Supp. at 971.

10 . Appellant also sought an order that ABC take no action, pendente lite, to interfere with the “continued assertion of plaintiff’s — and the class she represents — leasehold interest in the premises.” The motion alleges in part:

“It is asserted, therefore, to allow the buildings to be preserved, pendente lite, and in fear for their lives that plaintiff, and others in the class she represents, vacate involuntarily and without any relinquishment of their legal tenancies.

“Plaintiff represents, to the best of her knowledge, that temporary relocation services are being provided tenants of the complex by the Redevelopment Land Agency.”

As set forth in Note 6, we are not here concerned with any claim appellants may have against ABC Realty Co.

11 . Supporting affidavits indicate also that District authorities will recommend that the Girard Street property be condemned when the order of April 22, 1971 is vacated, and that in December, 1971 the area in which these buildings are located was added to the Neighborhood Development Program and designated for demolition.

12 . With respect to appellant Masszonia, the affidavit of the Assistant Executive Director, Office of Relocation and Administration, recites that Mrs. Masszonia “moved to an address unknown on May 17, 1971. Various efforts had been made to relocate Mrs. Masszonia to standard housing, but she expressed plans to move on her own.”

13 . In oral argument counsel for appellees relied heavily on the contention that the case is moot. Appellees were granted leave to file a motion to dismiss on that ground, and appellants were granted time for a reply. The motion and supporting memorandum and affidavits were filed by appellees. Appellants have not responded. In the absence of counter affidavits or other response, we accept as true the facts set forth in appellees’ affidavits.

14 . As noted supra, the order of April 22, 1970 was entered after the appeal was taken to this court. In view of our disposition of the appeal it is unnecessary to consider the effect of this order or whether the district court was authorized to enter the order after the appeal was taken from the prior order.

15 . Those provisions of the orders favorable to appellants, from which no appeal was taken, have been complied with or are no longer effective by reason of appellants’ abandonment of the property. All relief sought by appellants was based upon their occupancy of the property. If the affidavits filed by appellees are found by the district court to be true, nothing now remains to be litigated.