Urciolo v. Washington

HARRIS, Associate Judge

(concurring in part and dissenting in part) :

I fully agree that the trial court properly denied the motion for a temporary restraining order. However, rather than merely affirming on the merits, I would dismiss the appeal.

Appellant Joseph Urciolo is an attorney. As I read the record, he acknowledged having notice of the November 10, 1970, order of condemnation directed against the property in question.1 He further testified *255that he knew he could seek review of the condemnation order within 15 days of the service thereof, D.C.Code 1967, § 5-628, and that if he elected not to seek review, he had six months within which to remedy the insanitary conditions which caused the issuance of the order. His decision not to appeal to the Condemnation Review Board was voluntary, based upon an expressed intent to repair the premises.

Total legal finality had attached to the order of condemnation by the end of November, 1970. Appellants took no steps to repair the property, and considerably more than the allowed six months passed. When the Board finally notified appellants that the building was to be demolished (by letter dated March 9, 1972), appellants sought further time within which they supposedly would make repairs. In the letter seeking such relief (dated March 17, 1972), appellants did not challenge the original order of condemnation in any way; they simply asked for more time. As noted in the preceding opinion, appellants’ request was entertained fully by the Board, but was re-j ected.

Appellants’ “Motion for Temporary Restraining Order and Preliminary Injunction” was filed in the trial court on May 15, 1972. To the extent that any legal arguments were advanced as a part thereof, such arguments constituted essentially a collateral attack on the legality of the long-since final condemnation order of November 10, 1970. At the hearing on the temporary restraining order (which was held the same day the motion was filed), no likelihood whatsoever was shown of success on the merits (if indeed one could even determine what point on the merits was before the trial court). Appellant Joseph Urciolo stated that “all I’m asking is [the] chance to repair,” and further that he was “asking the Court for justice to allow me sufficient time in which to do it.” Considering all of the circumstances, the denial of the temporary restraining order was eminently proper.

The hearing on the temporary restraining order was conducted before the trial court’s Judge in Chambers. At the conclusion thereof, the court advised appellants: “ . . . you may still apply to the Court for a preliminary injunction, at which time, the Court will hold a full evidentiary hearing.” Appellants chose not to pursue their right to a hearing on a preliminary injunction, and came immediately to this court instead.

We have the authority to review final orders of the Superior Court, D.C.Code 1972 Supp., § 11-721 (a)(1). We also have the authority to review interlocutory orders of the Superior Court which grant or refuse injunctions. D.C.Code 1972 Supp., § 11-721 (a) (2) (A). No such authority has been conferred upon us with respect to temporary restraining orders. This is altogether proper, principally since (1) orders deciding motions for temporary restraining orders typically are based upon records which are cursory at best, and (2) they may not be granted for more than ten days.2

It is both well settled and sound that absent extraordinary circumstances, rulings on temporary restraining orders are not appealable. See, e. g., McSurely v. McClellan, 138 U.S.App.D.C. 187, 426 F.2d 664 (1970); Dilworth v. Riner, 343 F.2d 226 (5th Cir.1965). While it is true that there was uncertainty as to exactly when the actual demolition would take place (the contract for the demolition was confirmed by a letter of the Board dated May 5 and was to be performed within 90 days), appellants had known for a year and a half that the building was subject to demolition unless its insanitary condition were corrected. In my view the circumstances presented do not warrant deviation from the general rule of non-appealability of rulings on motions for *256temporary restraining orders. I believe that appellants’ failure to pursue a hearing and obtain a ruling on their motion for a preliminary injunction was jurisdictionally fatal, and that the appeal should be dismissed.3

. Ilis challenge to the validity of service on his wife, a co-owner of the property, is frivolous.

. The handling of motions for injunctive relief is governed specifically by Super. Ct.Civ.R. 65 and generally by Super.Ct. Oiv.R. 12-1. Rule 65(b) does authorize an extension of a TRO under certain circumstances.

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