12 NICS App. 91, NOOKSACK INDIAN HOUSING AUTH. V. CLINE (December 2014)

IN THE NOOKSACK TRIBAL COURT OF APPEALS

NOOKSACK INDIAN TRIBE

DEMING, WASHINGTON

Nooksack Indian Housing Authority, Plaintiff/Appellee,

v.

Ryawn Cline, Defendant/Appellant.

NO. 2014-CI-APL-006

SYLLABUS^*

Landlord filed action for unlawful detainer. Landlord served summons and complaint by posting at the residence, but did send an additional copy to tenant by mail. After tenant failed to answer the complaint and failed to appear for hearing, trial court entered judgment for unlawful detainer. Court of Appeals holds that (1) plain language of the unlawful detainer ordinance requires strict compliance with service provisions, which include a requirement that when service of a summons and complaint is made by posting, an additional copy must be mailed; and (2) because service of the summons and complaint did not comply with the ordinance, trial court lacked subject matter jurisdiction over the complaint. Trial court order vacated and matter remanded for further proceedings.

OPINION

Before:	Eric Nielsen, Chief Judge; Randy A. Doucet, Judge; Daniel A. Raas, Judge.
Appearances:	Ryawn Cline, pro se; Lori Smith, Office of Tribal Attorney, for Appellee.

OPINION

Raas, J.:

Appellant Ryawn Cline timely appeals his eviction from a unit he rented from the Nooksack Indian Housing Authority (NIHA).

12 NICS App. 91, NOOKSACK INDIAN HOUSING AUTH. V. CLINE (March 2008) p. 92

FACTS

Ryawn Cline (“Cline”) is a member of the Nooksack Tribe and was a tenant of the Nooksack Indian Housing Authority (“NIHA”) at 2547 Sulwhanon Drive, Everson, Washington. The Complaint contains a rental agreement for this unit that it states was signed by Cline on March 25, 2008. When he fell behind in his rental payments, the Complaint recites that Cline signed a Payment Agreement on August 8, 2013, wherein he promised to pay his rent plus additional moneys to catch up on his overdue rent. The Payment Agreement provided that:

Failure of the family to make two consecutive payments under the Payment Agreement will result in automatic termination of the Payment Agreement, with notice to the family. Breach of a Payment Agreement authorizes termination of the Payment Agreement. Breach of the Payment Agreement also authorizes termination of the MHO Program or Rental Agreement.

The Complaint also states that:

(1) Cline failed to make his first monthly payment under the Payment Agreement in August 2013;

(2) On September 19, 2013, NIHA sent him a reminder letter that failure to make a second payment could result in the penalties listed above;

(3) NIHA sent similar letters dated November 20, 2013, December 2, 2013, January 3, 2014, January 16, 2014, and also sent letters reminding Cline of his balances at other times; and

(4) NIHA sent Cline a Notice of Eviction dated March 17, 2014.

NIHA filed a Complaint for Unlawful Detainer pursuant to NTC Title 45, Unlawful Detainer, on June 26, 2014.

Cline has neither admitted nor denied any portion of the Complaint, nor that the documents attached to the Complaint are true and correct copies of agreements and letters that he signed, received or were sent to him, for he did not file an answer to the Complaint.

NIHA served the Summons and Complaint on June 26, 2014 by posting them in a conspicuous place at or near the entrance of 2547 Sulwhanon Dr., Everson Washington.

The Nooksack Tribal Code (“NTC”) specifies the method of service in an eviction case:

A copy of the summons and complaint may be served upon the defendant(s) in any one of the following [sic]:

12 NICS App. 91, NOOKSACK INDIAN HOUSING AUTH. V. CLINE (March 2008) p. 93

NTC 45.06.

The record shows that the Summons and Complaint were posted but that there is nothing in the record to show that these pleadings were also mailed to Cline as required by NTC 45.06(2).

Cline did not appear for the hearing. The Trial Court found that service was made under 45.06(1), which is the personal service provision, but noted that service was actually made by posting, which is NTC 45.06(2). The Declaration of Service does not recite compliance with the mailing requirement of NTC 45.06(2), or that Cline was personally served with the Summons and Complaint, nor is there anything in the record establishing that the Summons and Complaint were served on Cline by certified mail as allowed under NTC 45.06(3).

Cline appeals because he did not receive notice of the action and was unaware of the pending eviction and the hearing.

DISCUSSION

We have held that “[t]he role of this Court is to abide by the clear and unambiguous language of the constitutional and statutory provisions before us.” Campion v. Swanasel, 4 NICS App. 159, 161 (1996); Lomeli v. Kelly, 12 NICS App. 1, 10 (2014) (quoting Campion). This court’s primary duty is to discern and implement the intent of the Tribal Council that enacted the code or ordinance. See e.g. Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The language of the code itself provides the most reliable evidence of the intent of the Tribal Council. See e.g., United States v. Turreted, 452 U.S. 576, 593, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981).

An “Unlawful Detainer Action” is “a suit brought before the Tribal Court to terminate a tenant’s interest in real property and/or to evict any person from occupancy of real property.” NTC 45.03(6).

A person is guilty of unlawful detainer if said person breaches the terms of a rental agreement or other terms under which he or she shall be a tenant and fails to vacate the premises. NTC 45.04(4) (Tenant is guilty of unlawful detainer if tenant “continues in occupancy of real

12 NICS App. 91, NOOKSACK INDIAN HOUSING AUTH. V. CLINE (March 2008) p. 94

property” when the tenant “fails to keep or perform any condition or covenant of the lease or agreement under which the property is held.”)

The Complaint states that Cline has failed to pay the amounts in the Rental Agreement or the Payment Agreement and has failed to comply with the Notice of Eviction, and thus “has committed an unlawful detainer”.

NTC 45.09 requires proof of two matters before a Court can issue a Writ of Restitution restoring the premises to the NIHA under the Unlawful Detainer Ordinance. First, notice of the suit and hearing must be “given by service of [sic] summons and complaint, in accordance with the procedures provided in this Title.” NTC 45.09(1). Second, the Tribal Court must find that “the occupier of real property is guilty of an act of unlawful detainer.” NTC 45.09(2).

The ordinance unambiguously requires proof the Summons and Complaint were mailed to the tenant when service is performed by posting instead of by personal service or certified mail. There is no proof that the Summons and Complaint were served upon Cline as required by NTC 45.06. The Declaration of Service is silent as to mailing, and the Writ of Restitution and Order of Eviction only notes service was made by “posting.” Thus one of the preconditions to the issuance of the Writ has not been met under the unambiguous Nooksack ordinance. Without proof of compliance with the service requirements of NTC 45.06, no Writ of Restitution or Order of Eviction under NTC 45.09 can be issued by the Court.

While we have found no tribal court opinions directly on point, the Washington State courts have required strict compliance with the service requirements of the Revised Code of Washington.

“Proper statutory notice under RCW 59.12.030 is a ‘jurisdictional condition precedent’” to the commencement of an unlawful detainer action. Hous. Auth., 114 Wash.2d at 564-65, 789 P.2d 745 [Housing Auth. v. Terry, 114 Wash.2d 558 (1990)], (quoting Sowers v. Lewis, 49 Wash.2d 891, 894, 307 P.2d 1064 (1957)). Strict compliance is required for time and manner requirements in unlawful detainer actions. Smith v. Seattle Camp No. 69, 57 Wash. 556, 557, 107 P. 372 (1910); Truly v. Heuft, 138 Wash.App. 913, 920-21, 158 P.3d 1276 (2007); Cmty. Invs., Ltd. v. Safeway Stores, Inc., 36 Wash.App. 34, 37, 671 P.2d 289 (1983). Thus, any noncompliance with the statutory method of process precludes the superior court from exercising subject matter jurisdiction over the unlawful detainer proceeding. Hous. Auth., 114 Wash.2d at 560, 789 P.2d 745.” Christenson v Ellsworth, 162 Wn. 2d 365, 372 (2007).

We find these cases persuasive. We hold that under the plain language in NTC 45.06 and NTC 45.09, proper notice is a jurisdictional condition precedent under Nooksack law. Because the record does not show there was proper notice as required, the Writ of Restitution and Order of Eviction issued by the Nooksack Tribal Court are vacated and this matter is remanded for further proceedings.

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The syllabus is not a part of the Court’s Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.