2 NICS App. 118, SPSITHA v. Wilkins (April 1991)

IN THE NISQUALLY TRIBAL COURT OF APPEALS

NISQUALLY INDIAN RESERVATION

OLYMPIA, WASHINGTON

Southern Puget Sound Intertribal Housing Authority v. Anthony Wilkins

No. NIS-CIV 9/90-044 (April 11, 1991)

SUMMARY

A default judgment and order to vacate was entered against defendant Wilkins after he failed to appear before the Nisqually Tribal Court to contest an eviction action being taken against him. Wilkins appealed the trial court's decision, but failed to appear before the appellate panel when it convened to hear his case. Finding that Wilkins had been given appropriate notice both of the date of his original trial and of the date of his appeal hearing, the Nisqually Court of Appeals dismissed the appeal for failure to prosecute and affirmed the trial court's decision.

FULL TEXT

Before:	Chief Justice Charles R. Hostnik, Associate Justice Marguerite Bostrom, and Associate Justice Rosemary J. Irvin.
Appearances:	Melissa Johnson for Southern Puget Sound Intertribal Housing Authority.

DECISION AND ORDER

BOSTROM and IRVIN, Associate Justices:

This matter came before the Nisqually Tribal Court of Appeals for argument on March 20, 1991, pursuant to a Notice of Appeal filed by defendant Anthony Wilkins on October 26, 1990. The only party present at the appeal hearing was the respondent, Southern Puget Sound Intertribal Housing Authority, through its representative, Melissa Johnson. Appellant Anthony Wilkins did not appear. Appropriate notice and efforts to secure the appellant's appearance were made both prior to and on the date of the appeal hearing.

The appellate panel has reviewed the pleadings, evidence and transcript of the trial proceedings, and has heard the arguments of respondent Southern Puget Sound Intertribal Housing Authority. Based upon the foregoing, the court issues the following decision and order.

2 NICS App. 118, SPSITHA v. Wilkins (April 1991) p. 119

I. FAILURE TO PROSECUTE APPEAL

The defendant in this action was served with a Summons to Appear for Trial and to Answer Complaint by a certified mailing sent to the defendant's post office box. The defendant's mother picked up the certified letter containing the summons and complaint. The summons clearly indicated that trial of the action was scheduled for October 16, 1990, at 1:30 p.m. The Notice of Appeal filed by Mr. Wilkins does not allege improper notice of the trial court proceedings.

On the date and time set for trial, the plaintiff Housing Authority appeared, but the defendant did not appear. Default judgment was granted to the Housing Authority based upon the allegations contained in its complaint. A default judgment and order to vacate was entered by the trial court on October 16, 1990. Judgment was issued against the defendant in the amount of $115, and the defendant was ordered to move from the premises within three days of service of the default judgment and order to vacate.

On October 26, 1990, Anthony Wilkins filed his Notice of Appeal in connection with this matter. As of that date, he had not yet moved out of the house.

Anthony Wilkins was given appropriate notice of the appeal hearing set for March 20, 1991, at 10:00 a.m. The defendant failed to appear at that hearing to appeal the trial court's decision. The defendant, as the appealing party, had the burden to show the trial court's decision was incorrect. Since the defendant has not made any efforts whatsoever to proceed with his appeal since the time the notice of appeal was filed, this court must assume that he has abandoned his appeal. The Housing Authority, respondent in this appeal, did appear to argue in support of the trial court's decision and judgment. Since the appellant has failed to prosecute his appeal, the appeal will be dismissed, and the trial court decision will be affirmed.

II. ORDER

Therefore, this court orders as follows:

Project No. WASH 52-12, Unit #9, Lot #9, That Part of the Southeast Quarter of the Southwest Quarter of Section 21, Township 18 North, Range 1 East, Williamette Meridian, Thurston County, Washington.

2 NICS App. 118, SPSITHA v. Wilkins (April 1991) p. 120

HOSTNIK, Chief Justice, concurring:

I concur with the opinion of the majority that this appeal should be dismissed for failure of the appellant, Anthony Wilkins, to pursue his appeal. When an appeal is filed, the burden is upon the one filing the appeal to go forward with the appeal. At a minimum, this requires the appealing party to appear on the date set for oral argument and to educate the appellate panel as to why the trial court's decision should be reversed or modified. Anthony Wilkins did not do that in this case. Moreover, since filing his Notice of Appeal, Anthony Wilkins has taken no steps whatsoever to proceed with his appeal.

In my view, Anthony Wilkins has also shown a lack of good faith in connection with the appeal, by continuing to occupy the premises without paying any rent whatsoever since the time of trial in this matter. There is now an additional five months of rent due, and no payments have been made by Anthony Wilkins to the Housing Authority for occupancy of the premises since October of 1990. If Mr. Wilkins had made efforts to pay rent, either to the Housing Authority or to the clerk of the Tribal Court, and if he had appeared at the date set for oral argument, a different result may very well have been reached.

The Housing Authority is required to issue notice to an occupier of leased premises prior to commencing legal action to evict a tenant. 24 CFR §905.424(b). In this case, that notice was dated August 8, 1990, and apparently

2 NICS App. 118, SPSITHA v. Wilkins (April 1991) p. 121

served upon an adult resident of the premises on the same date. In my view, that notice of termination is ineffective because it is ambiguous. The notice of termination begins by stating that the tenant is notified that, subject to certain rights of review, their tenancy is terminated, effective thirty days from receipt of the notice. Reasons for termination are then given, specifying breaches of the agreement under which the tenant occupies the home.¹

The notice of termination goes on to provide that a mandatory meeting was to be scheduled with either the Executive Director of the Housing Authority or its Board of Commissioners. The notice states:

Failure to attend or notify the Housing Authority of not being able to attend and/or alternate time to be scheduled will be noted and taken into consideration when making a final decision on termination.

This indicates that a final decision had not yet been made with respect to termination of the occupancy agreement with Mr. Wilkins. It also implies that such a final decision would not be made until after the meeting with the Executive Director or the Board of Commissioners. Therefore, the notice of termination issued on August 8, 1990, could be construed to be ineffective as a notice of termination. An eviction action must be commenced by a valid Notice of Termination that is served properly on the tenant. A question could be raised whether that occurred in this case.

Secondly, even assuming the August 8 notice of termination was effective, termination was not to occur until thirty days from the date of that notification. Since Anthony Wilkins was notified by service upon an adult resident of the household on August 8, 1990, termination would have been effective thirty days later--on September 7, 1990. However, by letter dated August 30, 1990, the Housing Authority notified Mr. Wilkins that an eviction action would proceed. This letter was issued prematurely, in that the thirty-day period had not expired as of the date of that letter. Therefore, if this letter was intended to notify Mr. Wilkins that the termination was effective because thirty days had expired, the letter was issued prematurely and could be ruled to be void and of no effect.

Although the concerns expressed above could have been material or could have been harmless error, the appellate panel did not explore these issues because Mr. Wilkins failed to appear. Therefore, I concur with the majority that Mr. Wilkins has failed to prosecute his appeal. The appeal should be dismissed.

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As an aside, I concur with the trial judge's opinion that if a tenant is being terminated for conduct which disturbs a neighbor's peaceful enjoyment of adjoining premises, then the dates, times and specific instances of such conduct must be specified in order to give the tenant adequate notice of the grounds for breach of that provision. If that were the only grounds for terminating the occupancy of the tenant in this case, the Housing Authority would not have been granted a judgment in its favor.