5 NICS App. 17, MONGER v. THA (October 1997)

IN THE TULALIP TRIBAL COURT OF APPEALS

TULALIP INDIAN RESERVATION

MARYSVILLE, WASHINGTON

Mark A. Monger & Rose Hill, Appellants,

v.

Tulalip Housing Authority, Respondent.

No. TUL-Ci-4/97-747 (October 2, 1997)

SUMMARY

Appellants were served with an Eviction Summons, Complaint for Unlawful Detainer, and Notice of Hearing, which required Appellants to file an answer to the Complaint. Appellants did not file an answer nor appear at the hearing. Instead of entering a default judgment, the trial court entered a trial schedule containing a number of pre-trial requirements. Appellants did not comply with any of the orders, nor did they appear for trial. Judgment was entered in favor of the Housing Authority.

Appellants filed a notice of appeal which failed to allege an appropriate ground for the appeal. The notice of appeal also raised issues not raised before the lower court. Further, Appellants failed to comply with the appellate briefing schedule. Finding the appeal to be frivolous, a majority of the Court affirms the trial court judgment and remands the issue of costs.

NELSON, C. J., delivered the opinion of the Court, in which WEISSMULLER, J., joined. HOSTNIK, J., filed a dissenting opinion.

FULL TEXT

Before:            Dennis Nelson, Chief Justice; Charles R. Hostnik, Justice; Thomas W. Weissmuller, Justice.

Nelson, J.:

This matter came before the Court on the Court’s own motion to review the progress of the appeal to date. By order dated July 10, 1997, the parties were required to submit briefs. The Appellant’s brief was due by August 11, and the Respondent’s brief was due by September 11. The Respondent timely submitted its brief, but no brief has been received from the Appellants.

The Court has also reviewed the record concerning the action of the parties below. The

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record demonstrates that the Appellants simply have not participated in this eviction proceeding, other than filing a notice of appeal. This case began with personal service upon each Appellant with a Notice to Terminate Tenancy on March 18, 1997. The Appellants did not respond.

They were then personally served with an Eviction Summons, Complaint for Unlawful Detainer, and Notice of Hearing on April 29, 1997. That Notice required the Appellants to file an answer to the Complaint, or the Housing Authority would request an order of default on the hearing date, which was set for May 7, 1997.

On May 7 the Appellants did not appear. They did not file an answer to the Complaint. The trial judge entered a trial schedule on that date, rather than a default against the Appellants. That trial schedule was served on the Appellants on May 12, 1997. The trial schedule set the trial date for June 4, 1997, and required the parties to file lists of witnesses and exhibits seven days prior to the trial date. In addition, that court order required Appellants to file “a document setting forth all claims and/or defenses” that the Appellants had to the eviction action. The Appellants totally ignored these court orders.

On the date set for trial, the Appellants again failed to appear. Findings of Fact and Conclusions of Law, a judgment, and a Writ of Restitution were entered by the trial judge at the request of the Housing Authority. Twenty days later, the Appellants elected to participate in the court proceedings for the first time, by filing a notice of appeal. Appellants have not participated further, and did not file the brief required by the Court in its order of July 10, 1997.

For purposes of appeal under Section 1.11.1 of the Tulalip Law & Order Code, an appellant must claim that the trial court either: (a) made a mistake in interpreting law, or (b) made a mistake in procedure that affected the outcome of the trial.

The Notice of Appeal does not allege either ground of appeal. Appellants have not claimed that the trial judge made a mistake in interpreting the law applicable to this eviction proceeding. Neither do Appellants claim that the trial judge made a mistake in procedure that affected the outcome of the case. In fact, the record shows the trial judge acted appropriately in entering his orders, because the only evidence before him supported the action requested by the Housing Authority. The Appellants had an opportunity to present contrary evidence, but elected not to participate in the court proceedings.

The Notice of Appeal does not dispute that Appellants should be evicted, and does not dispute that the amount of the judgement entered against the Appellants was incorrect. The only ground for appeal is that the Appellants should have been granted an opportunity to enter into payment arrangements with the Housing Authority to pay off the amounts owed. This is not a proper basis of appeal under Section 1.11.1 of the Tulalip Law & Order Code.

The grounds for appeal stated in the Notice of Appeal raises issues that are presented for the first time on appeal. This Court will not consider issues raised for the first time on appeal, because

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the role of the appellate court is to review the actions of the trial court. If the trial judge has not had an opportunity to rule on an issue, then this Court cannot review that issue. It is unfair to the trial judge and to the parties to consider issues raised for the first time on appeal. A ruling by this Court would not permit a right of appeal to the losing party from this Court’s decision on those issues raised for the first time on appeal.

For the foregoing reasons, the appeal will be dismissed. However, this Court must consider the requirements of Section 1.11.12(c) of the Tulalip Law and Order Code. This section provides:

If the judges determine that an appeal was filed frivolously and without good faith, they shall dismiss the appeal and charge all costs to appellant.

The discussion above shows that the appeal in this case was filed frivolously. The Appellants did not participate in this case at the trial level. They filed a notice of appeal, which did not allege any errors of law or procedure, but simply that the Housing Authority should have permitted a payback arrangement. The Housing Authority is not legally required to do so. The Appellants ignored this Court’s briefing deadline and elected not to participate in their own appeal. This appeal was filed frivolously.

However, the record in this case does not provide an adequate basis for determining the amount of costs that are required to be imposed under Section 1.11.12(c) of the Law and Order Code. This issue is therefore remanded to the trial court for a determination of the amount of costs that should be imposed.

In all other respects the decision of the trial court is affirmed. The Housing Authority is entitled to immediate enforcement of the Writ of Restitution entered on June 4, 1997. The judgment entered in favor of the Housing Authority and against Mark Monger and Rose Hill is affirmed.

Justice Weissmuller concurs.

Justice Hostnik, dissenting:

Although I recognize and understand the rationale of the majority Justices as set forth above, I dissent from their opinion on the basis that issuance of the Court’s opinion at this point is premature. It is true that the record before this Court shows a total lack of participation by the Appellants in the trial court action. I believe they should be permitted an opportunity to present oral argument to this appellate panel.

It must be remembered that the Appellants are lay persons, presumably not familiar with appellate procedure. The briefing order of this panel set a deadline for the submission of briefs, but did not provide a written consequence if either party did not submit a brief. The normal consequence

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would be that the appellate panel would not have the written arguments of the Appellants before it when deliberations on the merits of the appeal were conducted. I believe it is too harsh to dismiss the appeal because a brief was not submitted by a pro se party.

The majority’s decision is even more harsh when considered in the light of the fact that the date set for oral argument is October 3, 1997 - a mere few days away. I would argue the Appellants should have an opportunity to appear and present their arguments on that date.

The Appellants may not be able to convince this jurist that their position should prevail, but that is not the point. They should be given the opportunity to do so. On this basis, I dissent from the opinion of my esteemed colleagues.