3 NICS App. 353, SPSITHA v. Paz (August 1994)

IN THE NISQUALLY TRIBAL COURT OF APPEALS

NISQUALLY INDIAN RESERVATION

OLYMPIA, WASHINGTON

Southern Puget Sound Intertribal Housing Authority v. Paz

No. NICS-Ci-5/94-031 (August 19, 1994)

SUMMARY

Appeal of Order to Vacate issued by the Trial Court. Court of Appeals continued the case after parties reached and agreement to resolve the case.

FULL TEXT

Before:            Chief Justice Rosemary Irvin, Associate Justice Elizabeth Fry and Associate Justice David Harding.

Appearances:  Anita Paz, pro se Appellant; Jeff Choke, representing Respondent, Southern Puget Sound Intertribal Housing Authority.

NATURE OF THE ACTION

Respondent, South Puget Sound Intertribal Housing Authority, filed an unlawful tenancy action against Appellant, Paz, in Nisqually Tribal Court for failure to make her lease payments. On the scheduled court date, Appellant was unavailable. Appellant's daughter-in-law, Elisha Gordon, appeared as her representative and moved for a continuance. The Trial Court did not rule on Gordon's motion; instead, it entered a Default Judgment against Appellant. The Trial Court indicated that it would quash the judgment upon Appellant's remittance of monies owed. Appellant appeals the Trial Court order, alleging that the order failed to state the amount owed.

IRVIN, Chief Justice:

The Court, having heard the arguments and representations of the parties and having considered the records and files herein, the SPSITHA ledger card represented by the parties to be the Appellant's ledger card, and the Mutual Help and Occupancy Agreement represented by SPSITHA to be the contract between the parties, renders the following decision:

3 NICS App. 353, SPSITHA v. Paz (August 1994) p. 354

BACKGROUND

The parties entered into a Mutual Help and Occupancy Agreement for the lease-purchase option of a home on the Nisqually Reservation on August 2, 1979. In November, 1993, Anita Paz was in arrears $1055.00 on the payment account. At that time, $1055.00 was taken from Anita Paz's equity account to bring the account current. The payments at that time were $221 per month. Ms. Paz did not remit payments for November 1993, December 1993 or January 1994. In January, she was in arrears $662 on the account. SPSITHA issued a Delinquency Notice to Ms. Paz on January 11, 1994, indicating she was delinquent $663 on her account. It is unclear whether the Notice was sent, as the certification of mailing on it is unsigned. SPSITHA sent Ms. Paz a Notice of Termination on January 21, 1994, which she received on January 24, 1994, that stated the reason for termination:

You have violated Paragraphs 4.1 and 4.3 of the Mutual Help and Occupancy Agreement in that you have failed to pay your house payment in and for the amount of $663, plus future sums failing due.

Notice of Termination, January 21, 1994, paragraph 2.

In February, Ms. Paz made a $300 payment to the account. Considering a Change of Circumstances request, SPSITHA verified Ms. Paz's income and reduced the required payment under the Agreement to $70 per month, beginning March 1, 1994. A second Letter of Intent was mailed to Ms. Paz on March 4, 1994, which stated that the current balance on Ms. Paz's account was $805 and that:

The Housing Authority will be issuing court papers for eviction to the Court Clerk at your tribal office. The Tribal Court will be in contact to inform you of the Court Date.

Letter of Intent, March 4, 1994, paragraph 3.

Ms. Paz made no payment in March or April, 1994. On May 3, 1994, a Complaint for Unlawful Tenancy Action was filed by SPSITHA in Nisqually Tribal Court. The Complaint stated that:

Defendant has breached the Agreement by:

( ) failure to make payments required under the Agreement. There is now owing and past due the amount of $ _____ , and it is anticipated that additional amounts owing under the Agreement will have come due by the time matter is brought on for hearing before this Court.

SPSITHA v. Paz, Nisqually Tribal Court, No. NIS-Ci-56/94-031, Complaint, May 3, 1994.

3 NICS App. 353, SPSITHA v. Paz (August 1994) p. 355

On May 24, 1994, a Tuesday, the Nisqually Tribal Court entered a Default Judgment and Order to Vacate on Case No. NIS-Ci-56/94-031. Ms. Paz was on a vision quest and did not appear but had sent her daughter-in-law, Elisha Gordon, to represent her.

Before acknowledging Ms. Gordon's presence, the trial judge entered a Default Judgment in favor of SPSITHA for the amount of $794.00 and issued an Order to Show Cause for Ms. Paz's failure to appear. The trial judge was then advised of Ms. Gordon's presence and acknowledged Ms. Gordon as Ms. Paz's representative.

Ms. Gordon advised the Court that Ms. Paz was on a vision quest, would be back that Friday, and that Ms. Paz had a money order to pay the arrearage. The Court struck the Order to Show Cause, but maintained the Default Order and explained to Ms. Gordon that ". . . . this will be quashed when she comes in and pays this. . . ." Trial transcript, page 2, 11, 28-29.

Ms. Paz paid $210 into the account on May 31, 1994. After the May 31st payment, the SPSITHA ledger indicates that she was delinquent $584 on the account. Ms. Paz filed a Notice of Appeal with the Nisqually Tribal Court on May 27, 1994, stating that the original order did not state an amount owed.

PROCEDURAL IRREGULARITIES

The Complaint for Unlawful Tenancy Action filed with the Nisqually Tribal Court and served upon Ms. Paz did not notify Ms. Paz as to the amount owing on her account.

At the time the Trial Court entered the Default Judgment, Ms. Paz's representative was requesting a continuance of the action based on the fact that Ms. Paz was on a vision quest. The Court did not directly rule on the Motion for Continuance but entered a Default Judgment. Ms. Paz represented to the Appellate Court that her representative, Ms. Gordon, informed her that the continuance had been granted.

APPROVAL OF PAYMENT AGREEMENT AND RETENTION OF JURISDICTION

After conferring, the parties reached an agreement for payment of the arrearage on Ms. Paz's account. The Agreement states:

I, Anita Paz, will [a]gree to make my monthly payment of 70 dollars by the first of the [the] month with additional payment of $49.00 dollar[s] to pay back what I owe by the 20th day of every month for 1 [year]. I understand that the three day [O]rder to [V]acate will stand if I do not follow thr[ough].

Thank you.

Date stating 9-1-94 thr[ough] 9-1-95. Amount owing $584.

Appellate exhibit #3.

3 NICS App. 353, SPSITHA v. Paz (August 1994) p. 356

The Agreement is dated August 19, 1994, and signed by both parties.

This Court hereby approves the agreement of the parties as a reasonable settlement of this case and finds that Ms. Paz freely and voluntarily signed the documents prior to any ruling being made on her appeal. In so doing, this Court retains jurisdiction for the period of one year, through September 1, 1995.

Compliance with the Agreement shall be court-monitored. Ms. Paz is to provide proof of her monthly payment to the Nisqually Tribal Court Clerk once per month. The Nisqually Tribal Court Clerk shall communicate monthly compliance or non-compliance to the Appellate Court Clerk for the Northwest Intertribal Court System.

In the event that there is non-compliance with the Agreement, the Appellate Court will reconvene and decide this case.