1 NICS App. 88, Fernando v. Loomis (March 1990)

IN THE SWINOMISH TRIBAL COURT OF APPEALS

SWINOMISH INDIAN RESERVATION

LACONNER, WASHINGTON

Debra M. and David L. Fernando v. Ron L. and Deanna L. Loomis

No. SWI-Civ-9/89-389 (March 6, 1990)

SUMMARY

In a matter heard on appeal as a trial de novo, the defendants were found liable for damages caused during their occupation of a mobile home being purchased from plaintiffs. When the sale fell through, the plaintiffs sued for eviction and damages. Eviction became moot when the defendants vacated. The Court of Appeals held that the plaintiffs were entitled to partial damages, as full damages were denied for lack of proof.

FULL TEXT

Before:

Chief Justice Dennis Nelson, Justice Marguerite Bostrom and Justice John Roe.

NELSON, Chief Justice:

This action for eviction and damages was originally heard by Judge Mary Pearson on November 22, 1989. Judgment was rendered in favor of the plaintiffs who subsequently appealed.

On February 5, 1990, the appeal was brought before a three judge panel of the Northwest Intertribal Court System of which the Swinomish tribe is a member.

In accordance with the Rules of Appellate Procedure for the Swinomish tribe, the matter was heard as a new trial. As a new trial the plaintiffs were required to prove by a preponderance of the evidence each of the allegations in their petition.

The hearing began one-half hour late with only the defendants being present, there having been no word from the plaintiffs regarding their absence. Plaintiff David Fernando appeared approximately thirty minutes later, and his wife, Debra Fernando, who was ill, appeared shortly thereafter. All parties were advised that the matter would be heard as a new trial as required by the Appellate Rules.

1 NICS App. 88, Fernando v. Loomis (March 1990) p. 89

FINDINGS OF FACT

These findings of fact were either agreed to by the parties, admitted by the defendants or adduced from the evidence.

In March, 1988, the defendants agreed to purchase a parcel of land from the plaintiffs for $14,000.00. Down payment in the amount of $5,000.00 was received by the plaintiffs.

Located upon the property was a mobile home owned by plaintiffs who agreed to rent it to the defendants. Defendants resided in the mobile home until December 31, 1988, having moved in accordance with an eviction notice issued by the plaintiffs. The eviction was apparently caused by unrelated contractual obligations of the plaintiffs and not because of unpaid rent:

During their occupancy of the plaintiffs' mobile home, defendants damaged the floor in a bedroom, the wall of the bedroom, curtain rods in the bedroom and put a hole in the outside wall to accommodate a Jenn-air kitchen range. There was evidence of an alteration to the kitchen to allow a larger refrigerator and of some scarring to the kitchen floor.

The court has determined that damage to the bedroom floor was in the amount of $244.77 and that damage to the kitchen wall was in the amount of $300.00. The plaintiffs did not prove with any clarity alleged damages regarding the refrigerator space and the proof of damages to the bedroom wall was simply not credible. There was no proof offered regarding the amount of damages to the curtain rods or to the kitchen floor.

The defendants, after vacating plaintiffs' mobile home, moved into their mobile home which they had brought on to the property and set up near plaintiffs' mobile home. The defendants disconnected the utilities from the plaintiffs' mobile home and reconnected them to their mobile home. These utilities included water, septic, electricity, telephone, cable television and a pumping system. In addition, a switch box and wiring were damaged and water storage tanks removed.

Because the electricity was disconnected, the water heater in the plaintiffs' mobile home was frozen and had to be replaced. The court finds from the evidence presented that at the time the defendants vacated the premises, the weather was not severe enough to cause the freeze damage and that plaintiffs did not act responsibly to protect their mobile home from the weather. Therefore, they are not entitled to damages for the the frozen water heater.

The defendants remained in their mobile home on plaintiffs' property until November 24, 1989, when they moved it in response to this eviction action. Plaintiffs in their petition prayed for rent due in the amount of $280.00 per month from November 1988 to November 1989. Plaintiffs did not address this issue at trial; however, it was considered before Judge Pearson in the underlying

1 NICS App. 88, Fernando v. Loomis (March 1990) p. 90

action. She determined that defendants were obligated to pay $1,100.00 as ground rent for the period their mobile home was on the plaintiffs' property and that Nancy Wilbur and Charles Douglas-Wilbur, as co-owners of the property, were entitled to $275.00 of that amount. At the beginning of the new trial on appeal, the defendants admitted to owing $1,100.00 as ground rent.

The parties agreed in open court that the oral contract for the sale and purchase of plaintiffs' real property was rescinded and of no further force or effect. Plaintiffs have indicated they are willing to return the $5,000.00 down payment less property damages and ground rent.

This court has determined that the plaintiffs are also entitled to damages of $249.92 for repair of the pumping system including storage tanks damaged or removed by the defendants. Plaintiffs are further entitled to $75.00 for the completion of the retrenching for a conduit which had been begun by defendants but not completed. Defendants also admit to owing $50.00 for attorney fees incurred by plaintiffs in the prosecution of this action. Finally, defendants admit to owing $716.54 for replacement of wiring which had been removed or damaged.

Plaintiffs requested reimbursement for charges incurred in reconnecting the telephone and cable television services. The court finds that the amounts paid by plaintiffs for reconnection are no more than that charged whenever there is a change of residents.

Plaintiffs further requested reimbursement for charges incurred in the moving of their mobile home from the property including welding charges for certain repairs. No evidence was presented at trial to support these allegations and therefore no damages can be awarded.

During 1989 the relations between the parties had dissolved into great acrimony and bitterness. In March 1989, the plaintiffs sought and received restraining orders issued by the Washington State Superior Court and the Swinomish Tribal Court which prohibited defendant Ron Loomis from harassing or threatening the plaintiffs. The restraining orders remain in effect.

Plaintiffs requested reimbursement of $94.00 for filing and service fees incurred in obtaining the temporary restraining order from the Washington State Superior Court. The court finds that the restraining order had no relevance to the present action which is one for eviction and damages to property. Plaintiffs' request for reimbursement of $94.00 is denied.

CONCLUSIONS OF LAW

The court concludes as a matter of law that plaintiffs should be entitled to recover from personal property damages and for ground rent as follows:

1 NICS App. 88, Fernando v. Loomis (March 1990) p. 91

Plaintiffs should not recover for damages alleged to have occurred for storage, excess rent, removal of their mobile home and welding, kitchen alteration for a larger refrigerator, scarring of kitchen floor and costs of restraining orders.

JUDGMENT AND ORDER

On the basis of the foregoing Findings of Fact and Conclusions of Law the court makes the following Judgment and Order.

Plaintiffs are awarded $2361.23 as rent and property damages from the $5,000.00 down payment given to them by defendants. The balance in the amount of $2,638.77 shall be returned to the defendants. Plaintiffs have posted an appeal bond in the amount of $2,227.46, which the clerk of the court shall distribute as follows: $137.50 to Nancy Wilbur; $137.50 to Charles Douglas Wilbur, and $1,952.46 to the defendants.

Defendants are awarded judgment against plaintiffs for the remaining amount of $411.31 ($2,638.77 less $2,227.46).