13 NICS App. 40, COOKE v. TRACY, et al. (July 2015)

IN THE HOOPA VALLEY TRIBAL COURT OF APPEALS

HOOPA VALLEY TRIBE

HOOPA, CALIFORNIA

Thomas Cooke, Plaintiff/Appellee,

v.

George Tracy and Jacquelyn McCovey, Defendants/Appellants.

NO. A-14-007 (July 23, 2015)

SYLLABUS^*

Owner served tenants with 30 day notice of termination of tenancy. Tenants failed to vacate premises by termination date. Owner filed Complaint for Unlawful Detainer. Trial court issued order in favor of owner. Trial Court Judge added sua sponte damages owed to owner. Court of Appeals ruled that trial court lacked jurisdiction over the one tenant not properly served with Summons and Complaint when it entered its default order. Court of Appeals affirmed the trial court order against the other tenant as she was properly served, but vacated judgement ordering monetary damages and wage garnishment due to lack of notice and opportunity to respond.

Before:	Lisa E. Brodoff, Chief Judge; Matthew L.M. Fletcher, Judge; Suzanne Ojibway Townsend, Judge.
Appearances:	George Tracy and Jacquelyn McCovey, Appellants; Thomas Cooke, Appellee

OPINION

Brodoff, J.:

This matter came before the Court of Appeals pursuant to the timely Notice of Appeal filed by Appellants Jacquelyn McCovey and George Tracy on December 12, 2014. Appellants challenged the Order Following Complaint for Unlawful Detainer issued by the trial court on December 9, 2014. Appellants timely filed and served their opening brief in compliance with this court’s briefing schedule. Appellee Cooke did not file a response brief.

13 NICS App. 40, COOKE v. TRACY, et al. (July 2015) p. 41

Having reviewed the record and the brief filed by Defendants/Appellants, we make the following findings and conclusions:

Thomas Cooke is the owner of a mobile home being rented on a month to month basis by Defendants/Appellants George Tracy and Jacquelyn McCovey pursuant to a verbal agreement entered into on November 14, 2012. Under the Hoopa Valley Tribal Code, an oral lease is considered a valid and binding lease. HVTC 36.5.1(m). On October 23, 2014, Cooke served both parties with a 30 day notice of termination of tenancy. Under HVTC 36.5.1(w), a 30 day notice to vacate is sufficient to terminate a month to month tenancy. When Appellants failed to vacate the premises by the termination date of November 23, 2014, Cooke filed a Complaint for Judgment of Unlawful Detainer on November 24, 2014.

In his Complaint for Unlawful Detainer, Cooke asks only for an entry of a judgment of unlawful detainer and an immediate writ of possession. See III. Relief Request p. 4 Complaint. No request for money damages was made in the Complaint.

The Summons and Complaint were properly served on Defendant/Appellant McCovey, but not on Defendant/Appellant Tracy. Hoopa Valley Trial Court Record of Proceedings 11:03:52 AM. There is no evidence in the record or proof of service showing that Tracy was served. In order to have jurisdiction over a party, a summons and complaint for judgement of unlawful detainer must be personally served on the tenant. The trial court can only issue an order of default if “a defendant served with a summons fails to appear”. HVTC 36.12.07(a).

Because Mr. Tracy was not personally served with the summons and complaint, we hold the trial court lacked jurisdiction over this defendant when it entered its default order. Therefore, we vacate the entire judgment with respect to Defendant/Appellant Tracy.

As Ms. McCovey was personally served with the summons and complaint, and she failed to appear at the court hearing, the judgment of unlawful detainer was proper and is affirmed as to this party. However, during the hearing, Judge Blake on his own added sua sponte damages owed to Mr. Cooke in the amount of $1665.00, and ordered wage garnishment from McCovey in the amount of $500.00 per month. Hoopa Valley Tribal Court Record of Proceedings 11:02:52 AM, and hand written addition to Complaint Sec. F Money Damages Sought initialed by Judge Blake. McCovey had no notice of these changes to the Complaint and new claim for damages. She had no opportunity to dispute the charges or the garnishment. Therefore, we vacate the damages portion of the judgment for lack of notice and opportunity to respond.

In conclusion:

13 NICS App. 40, COOKE v. TRACY, et al. (July 2015) p. 42

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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.