5 NICS App. 8, FRYBERG v. THA (August 1997)

IN THE TULALIP TRIBAL COURT OF APPEALS

TULALIP INDIAN RESERVATION

MARYSVILLE, WASHINGTON

Jamie Fryberg & Charles Oliver, Appellants/Defendants,

v.

Tulalip Housing Authority, Respondent/Plaintiff.

No. Ci-1/97-735 (August 13, 1997)

SUMMARY

A full factual inquiry by the trial court is prerequisite to appellate review. Trial court did not err in granting a default judgment to Respondent Plaintiff upon Defendants’ failure to appear for trial.

FULL TEXT

Before:            Elbridge Coochise, Chief Justice; Charles R. Hostnik, Justice; Larry King, Justice.

Appearances:  Jamie Fryberg, Appellant, pro se; Janet Evans, Tenant Specialist for Tulalip Housing Authority; Samuel J. Stiltner, counsel for Respondent Tulalip Housing Authority.

THIS MATTER came before the Tulalip Tribal Court of Appeals for oral argument on June 30, 1997, pursuant to a notice of appeal filed by Jamie Fryberg on May 7, 1997. That notice appealed the decision of the Tulalip Trial Court dated May 7, 1997, which found that Appellant was in default for her failure to attend the court hearing on that date. The Housing Authority was awarded a default judgment in the amount of $950.00 and other relief. Appellant appeared pro se at the hearing before this Court. The Housing Authority was represented by Samuel J. Stiltner.

I. STANDARD OF REVIEW

This Court reviews the trial court decision pursuant to Tulalip Law and Order Code, § 1.11.1 which provides:

Any person who claims, in good faith, that the Tulalip Tribal Court made a mistake in interpreting the law or a mistake in procedure which affected the outcome of the case shall have the right to appeal from the final judgment.

Ms. Fryberg has neither alleged nor shown any trial court error. Section 4.37.1 of the Law and Order Code provides for entry of a default judgment against a defendant who fails to appear at the lower

5 NICS App. 8, FRYBERG v. THA (August 1997) p. 9

court proceedings. Section 1.12 of the Unlawful Detainer Code also provides for a judgment by default:

If at the time appointed in the summons the defendant does not appear and defend, the court must render judgment in favor of the plaintiff as prayed for in the complaint. [Emphasis added].

It is based upon these provisions that this Court will review the trial court decision.

II. JURISDICTION

This Court has jurisdiction over Ms. Fryberg because she is a member of the Tulalip Tribes and resides on the Tulalip Indian Reservation. The home which is the subject of the underlying unlawful detainer action is located within the exterior boundaries of the Tulalip Indian Reservation; therefore, territorial jurisdiction exists. This Court has subject matter jurisdiction pursuant to Ordinance No. 49, § 1.2 and Ordinance No. 50, § 1.5.

III. ISSUE ON APPEAL

The issue presented by Appellant is whether the trial court committed error in issuing a default judgment when Appellant did not appear for trial.

IV. DISCUSSION

Ms. Fryberg contends that she did not receive notice of the court hearing. The file before the trial judge included an Affidavit of Service showing that a copy of the Summons, Complaint, and Notice of Hearing were left at Ms. Fryberg’s home with a resident who was at least 14 years old.

In response, the Housing Authority argues that the appeal should be dismissed because there are alternative methods of relief available to the Appellant in the trial court. The Housing Authority argues that since facts need to be developed before a ruling can be made on whether Appellant received adequate notice of the trial, it is the trial court who should accept witnesses and hear testimony on that issue, and the trial court should issue an opinion which would then be subject to review by the Tulalip Tribal Court of Appeals. We agree.

Based upon the record before us, which was the same record before the trial court (exclusive of the notice of appeal and claim that inadequate notice was received by the Appellant), the trial court committed no error. The Housing Authority appeared on the day and time set for trial of the action. Defendant did not appear. The trial judge reviewed the court file to determine if appropriate service was made. See Transcript at 3. The court file contained an Affidavit of Service indicating that appropriate service was made in accordance with Tulalip Civil Rule 4.4.4.13. Based upon that record, the trial court acted appropriately in granting a default judgment to the Housing Authority at its request. Dismissal of the appeal is appropriate.

5 NICS App. 8, FRYBERG v. THA (August 1997) p. 10

Dismissing this appeal will not leave Ms. Fryberg without a remedy. The Tulalip Civil Rules provide at least two methods for a party to request that a court set aside a default judgment. Rule 4.37.2.1 provides as follows:

For good cause shown and upon such terms as the court deems just, the court may set aside an entry of default. No court shall issue a transcript, pay out, or turn over money or property received by the court by virtue of any default judgment until the expiration of twenty (20) days from entry of the judgment.

Tulalip Civil Rule 4.37.2.1. This would appear to allow Ms. Fryberg 20 days within which to file a request to the trial court to set aside the default judgment. This 20 day period shall begin on the day this Opinion is filed with the Tulalip Tribal Court Clerk.

It would also appear that under Tulalip Civil Rule 4.39.2, Ms. Fryberg has another potential remedy. That rule permits a final judgment to be set aside for various reasons. Ms. Fryberg would have up to one year from the date of the trial court decision within which to request this relief from the court.

In addition, another potential remedy exists under §1.19 of the Tribal Forcible Entry and Unlawful Detainer Code (Ordinance No. 50). That section permits a tenant to request relief within 30 days after the tenancy is declared forfeited. Clearly our opinion does not leave Ms. Fryberg without options to pursue.

In light of the claims by Appellant that she did not receive notice of the hearing, a full factual inquiry should be made. The record before this Court is factually inadequate as a basis upon which to decide the issue presented by Ms. Fryberg’s appeal. Only after a full factual inquiry by the trial court will this Court be able to render an appropriate decision. If Ms. Fryberg desires to request a hearing before the trial court, there are methods provided by the Tulalip Civil Rules that will allow her to do so.

V. ORDER

This appeal is therefore dismissed. The trial court did not commit error in awarding a default judgment to the Respondent.