4 NICS App. 58, DUHON v. THE TULALIP TRIBES (February 1996)
IN THE TULALIP TRIBAL COURT OF APPEALS
TULALIP INDIAN RESERVATION
MARYSVILLE, WASHINGTON
Barbara Duhon, Appellant/Defendant
v.
The Tulalip Tribes of Washington, Respondent/Plaintiff
No. TUL-CI-12/94-329 (February 8, 1996)
SUMMARY
Appellant’s rental home is located on leased real property within the Tulalip Indian Reservation. After sending Appellant several late-rent notices, the Tulalip Tribe brought an unlawful detainer action against Appellant.
The trial court found that Appellant had failed to make timely rental payments on the real property and, therefore, was in unlawful possession of the leased property. The trial court further found that the Tribes had offered Appellant a new lease, which she failed to accept. The trial court ordered Appellant to pay the arrearage, plus damages, service fees, and attorney fees, and to return possession of the leased premises to the Tribes.
We affirm in part, reverse in part, and remand.
FULL TEXT
Before: Elbridge Coochise, Chief Justice; Yvonne M. Leveque, Justice; Dennis Nelson, Justice.
Appearances: Barbara Duhon, Appellant; Kearney Lee Hammer, counsel for Appellant; Lorna Bigsby, counsel for Appellee.
Per Curiam:
This matter came before the Tulalip Tribal Court of Appeals on November 3, 1995, pursuant to Appellant’s Notice of Appeal filed on March 30, 1995. Appellant appeals the Findings of Fact and Conclusions of Law, and the Judgment of the Tulalip Tribal Court entered on March 10, 1995.
4 NICS App. 58, DUHON v. THE TULALIP TRIBES (February 1996) p. 59
I. STATEMENT OF FACTS
In late 1984, Ms. Duhon purchased, through a Contract of Sale and Security Agreement, a dwelling house located on leased real property on the Tulalip Indian Reservation. Respondent’s Brief at 4. The existing ten-year lease on the real property subsequently was assigned to Ms. Duhon. Resp. Brief at 5. In early 1985, the Tulalip Tribes offered Ms. Duhon a new ten-year ground lease. Id.
In January 1985, Appellant Barbara Duhon entered into a ten-year ground lease agreement with Appellee Tulalip Tribes (hereinafter, “Tribes”). Ms. Duhon does not reside in the house on the lease property; instead she uses it as a rental. Trial trans. at 41, 59.
On November 10, 1994, after several previous late-rent notices, the Tribes served upon Ms. Duhon a Notice of Intention to Declare a Forfeiture and Cancellation of the Lease (hereinafter “forfeiture notice). The notice stated that Ms. Duhon had failed to make $667.22 in lease payments and $172.00 in sewer/water payments (a total delinquency of $839.22), and that her failure to make these payments placed her in default under the terms of the lease. The notice further requested that Ms. Duhon make the payments in full by December 12, 1994, or face cancellation of the lease.1 Ms. Duhon made no payments on or before the December 12 deadline. Trial trans. at 12.
On December 22, 1994, the Tribes filed a complaint for unlawful detainer against Ms. Duhon, alleging that Ms. Duhon had failed to make her annual lease payment and other related payments. The Complaint requested the trial court declare the leasehold interest terminated as of December 12, 1994 or, in the alternative, under its own terms on January 1, 1995.
On December 27, 1994, Ms. Duhon tendered a cashier’s check in the amount $839.22, payable to the Tulalip Tribes. Ms. Duhon filed an answer and affirmative defense on December 30, 1994, asserting that she had tendered both the lease payment and the water payment.
The trial court hearing took place on February 24, 1995 before Judge John Gibson. Judge Gibson heard testimony regarding both the unlawful detainer and the disputed existence of a second lease. On March 10, 1995 the trial court issued its Findings of Fact and Conclusions of Law (hereinafter “Findings and Conclusions”), and its Judgment. The trial court found, inter alia, that Ms. Duhon had failed to make timely rental and utility payments; that Ms. Duhon was in unlawful
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possession of the leased property; and that the Tribes had offered Ms. Duhon a new lease, which Ms. Duhon failed to accept and which offer the Tribes subsequently withdrew. Findings and Conclusions, paras. III, V, VII.
The trial court’s Judgment ordered Ms. Duhon to pay the Tribes $857.40 for delinquent rent and utilities, $220.00 damages for unlawful detention (55 days at four dollars per day); $78.00 service fees; and $1,541.00 in attorney fees. The Judgment also restored possession of the leased premises to the Tribes.
Ms. Duhon filed her appeal on March 30, 1995. This Court accepted the appeal on April 3, 1995.
II. ISSUES ON APPEAL
The issues on appeal are: 1) Whether Appellant’s actions constitute an unlawful detainer; and 2) Whether a new lease exists.
III. JURISDICTION
Appellees’ complaint is brought pursuant to Tribal Ordinance No. 50, the Tribal Forcible Entry and Forcible and Unlawful Detainer Ordinance. Section 1.5 of Ordinance No. 50 specifically provides that “[a] tribal court shall have jurisdiction of proceedings under this chapter”. To the extent that this action involves unlawful detainer, this Court has subject matter jurisdiction.
This appeal involves real property located within the exterior boundaries of the Tulalip Indian Reservation, thus giving rise to this Court’s territorial jurisdiction.
Appellant Barbara Duhon is non-Indian; however, she voluntarily entered into a lease with the Tulalip Tribes and purchased a house on the Tulalip Indian Reservation, thus consenting to this Court’s personal jurisdiction.
IV. MOTION FOR ADDITIONAL EVIDENCE
As a preliminary matter, we address Appellant’s Motion to Supplement the Trial Record filed on May 8, 1995. At the November 3, 1995 hearing this Court heard oral argument on the motion. At that time, this Court noted that before adjourning the February 24, 1995 hearing, Judge Gibson allowed the parties to submit additional evidence, provided that they did so within three days of the hearing. See Trial trans. at 63. Based on the fact that Appellant has had an opportunity to supplement the record and failed to do so within the time allowed, this Court denied Appellant’s motion.
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V. DISCUSSION
A. Unlawful Detainer
Pursuant to Tribal Ordinance No. 50, Appellee on December 22, 1994 filed a complaint for unlawful detainer against Ms. Duhon. The complaint alleged that Ms. Duhon had failed to respond timely to the November 10, 1994 forfeiture notice; the complaint further alleged that Ms. Duhon now owed the Tribes $857.40 in delinquent rent and utility payments. Appellees’ request for relief included termination Ms. Duhon’s leasehold interest, a judgment for delinquent payments a judgment for unlawful detainer, and immediate restitution of the leased premises.
1. Possession of Premises
The original ten-year lease agreement between Ms. Duhon and the Tribe terminated under its own terms on December 31, 1994. At the date of the trial court hearing, Ms. Duhon remained in possession of the premises and had not tendered any further rental payments. Ms. Duhon is a hold-over tenant under § 1.3(1) of Ordinance No. 50 and § 20 of the lease agreement. Pursuant to the terms of the expired lease, possession of the property in question reverts to the Tulalip Tribes.2
In its March 10, 1995 Judgment, the trial court ordered that the court clerk issue an immediate writ of restitution. The lease agreement, however, allows the lessee ninety (90) days from the date of termination to remove personal property, structures, and improvements. See Ten Year Ground Lease, § 10.0. Had the trial court given Ms. Duhon those ninety days, she would have had until April 1, 1995 to remove herself and her property from the leased premises. In the interest of fairness, Ms. Duhon should be afforded a reasonable amount of time to vacate the premises.
2. Payment
During the February hearing, the trial court noted that Ms. Duhon had tendered the delinquent rent and utilities. Trial trans. at 62. At that hearing, the Tribes’ counsel admitted that “monies have been tendered to make payment of the delinquent rentals and plaintiff’s costs, and attorney’s fees as accrued”. Trial trans. at 4. The trial court’s written Findings and Conclusions and its Judgment, however, ordered Ms. Duhon to pay to the Tribe $220.00 in damages for unlawful detainer and $857.40 for delinquent rent and utilities.
Due to the discrepancy between the trial court’s oral decision and its written Findings and Conclusions and Judgment, this Court cannot determine whether Ms. Duhon has, in fact, remedied the rent and utility delinquencies. Therefore, this issue is remanded to the trial court for a final
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determination of whether Ms. Duhon’s December 27, 1994 tender of $839.22 is to be credited to the judgment.
B. New Lease
Both Appellant and Appellee offered arguments during the February trial court hearing and the November appellate court hearing regarding the existence of a new lease.3 Appellee contends that it offered Ms. Duhon a new lease, that Ms. Duhon failed to accept the offer, and that the offer was subsequently withdrawn. Therefore, Appellee argues, when the original ten-year lease expired under its own terms on December 31, 1994, there could not have been a new lease. Appellant, on the other hand, contends that she did accept Appellees’ offer by signing and returning a 30-year lease.
1. Subject Matter Jurisdiction
Whether there was, in fact, an offer and an acceptance resulting in a renewal of Ms. Duhon’s lease is a contract issue. At the time this action was commenced, the trial court lacked subject matter jurisdiction over the contract dispute.
To the extent that this action involves contract issues, neither the trial court nor this Court of Appeals has jurisdiction to hear and determine the matter. Title I, § 1.2 of Ordinance No. 49 (adopted July 17, 1981) governs civil jurisdiction; § 1.2.3.1 (adopted June 4, 1988) limits the subject matter jurisdiction of the Tulalip Tribal Court to matters that arise under a Tribal Ordinance.4 On February 9, 1995, the Board of Directors (the legislative body) of the Tulalip Tribes amended Ordinance No.49, § 1.2 and, in doing so, removed the subject matter limitation on Tribal Court
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jurisdiction.5
Appellee Tulalip Tribes initiated this action in Tulalip Tribal Court on December 22, 1994, over a month prior to amendment of Ordinance No. 49. Absent a clear legislative intent that an ordinance apply retroactively, this Court will not give that ordinance retroactive effect. The February 9, 1995 amendment contains no provisions for retroactive application. Therefore, this Court is bound by the ordinance, including its jurisdictional limitations, that was in effect at the time the Tribe filed its complaint.
2. Ripeness and Notice
Appellee admits that at the time of commencement of the action (December 22, 1994), the original lease had not yet expired and, therefore, Ms. Duhon was not yet a “hold-over tenant” as contemplated by § 1.3 (1) of Ordinance No. 50. Appellee admits that while the contract issue was ripe at the time of the February hearing, it was not ripe at the time the complaint was filed. Neverthless, Appellee argues that at the time the action was filed, Ms. Duhon had not accepted the Tribes’ offer of a new lease, the offer had been withdrawn, and the “new lease” issue was offered in anticipation of Ms. Duhon’s impending status as a hold-over tenant on December 31, 1994, when her lease automatically expired.
Appellees’ anticipatory complaint argument is without merit. Assuming, arguendo, that the trial court had jurisdiction to hear the contract dispute, Appellee failed to plead specifically the “new lease” issue in its complaint. Appellee argued that it raised the issue in its prayer for relief (see Trial trans. at 19); however, the trial court voiced a concern that no part of the original complaint put Ms. Duhon on notice that the Tribes intended to pursue the automatic termination issue as additional grounds for the action against her. Trial trans. at 18-19. Appellee admits, furthermore, that termination of a lease for non-payment of rent and automatic termination of a lease are separate grounds. Trial trans. at 20.
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A complaint “must set forth the facts on which [a party] seeks to recover, and . . . may set forth therein any circumstances . . . which may have accompanied the . . . unlawful detainer. . . .” Ordinance No. 50, § 1.7. The purpose of a complaint is to provide the opposing party with notice of the type of and grounds for relief that plaintiff seeks. This Court finds that Appellees’ complaint failed to sufficiently notify Ms. Duhon of the Tribes’ intention to proceed on grounds other than the unlawful detainer.
Had Appellee wished to pursue the contract issue and to seek relief for Ms. Duhon’s alleged failure to accept the Tribes’ offer of a new lease, Appellee should have moved to amend or supplement its pleadings. This Appellee failed to do. See Trial trans. at 18-19.
Therefore, this Court reverses paragraph VII of the trial court Findings and Conclusions, which declares that the Tribes had offered Ms. Duhon a new lease and that Ms. Duhon failed to accept that offer, and we reverse that portion of the Judgment that implies the “new lease” issues have been adjudicated. The contract issue need not remain unresolved, however; the parties are free to pursue the matter in a separate action.
VI. ORDER
Therefore, based on the foregoing discussion,
It is hereby ordered that the Ten-Year Ground Lease Agreement entered into by Ms. Duhon and The Tulalip Tribes on January 1, 1985 has expired under its own terms effective December 31, 1994 and is therefore terminated;
It is further ordered that the trial court Judgment granting the Tulalip Tribes exclusive right, title, and interest in the real property is affirmed;
It is further ordered that the trial court Judgment ordering an immediate Writ of Restitution is remanded for issuance of a writ of restitution consistent with this opinion, such writ to include a provision of no less than ninety (90) days in which Ms. Duhon may remove any structures, installations, improvements, and personal property from the leased premises;
It is further ordered that the trial court Judgment ordering Ms. Duhon to pay to the Tulalip Tribes $220.00 in damages for unlawful detainer is affirmed;
It is further ordered that the trial court Judgment ordering Ms. Duhon to pay $857.40 to the Tulalip Tribes for delinquent rent and utilities is remanded to the trial court for a determination of whether Ms. Duhon has tendered payment.;
It is further ordered that those portions of the trial court Findings and Conclusions and
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Judgment which imply that the issues regarding the second lease have been adjudicated are reversed.
The November 10, 1994 Notice of Intention to Declare a Forfeiture and Cancellation of Lease provides:
AS CONSEQUENCES OF THE ABOVE DEFAULTS, YOU ARE HEREBY NOTIFIED that unless each and all of the defaults above specified are corrected by full payment and full performance on or before [3:00 p.m.] on December 12, 1994, the Lessors will elect to declare a forfeiture of and cancel your lease . . . .
Surrender: At the end of said term or other sooner termination of this lease, Lessees shall forthwith peaceably deliver up to Lessor possession of the demised land . . . . Ten Year Residential Ground Lease, section 10.0.
At the February trial court hearing, Plaintiff Tribes presented to the court an argument concerning the automatic termination of Defendant Duhon’s lease. Defendant initially objected to Plaintiffs’ attempt to address the issue of the disputed existence of a second lease. Defendant objected on grounds that the original complaint was based solely on unlawful detainer. Judge Gibson at that time decided to hear testimony on the issue of the second lease, but reserved his decision as to whether he would consider that testimony in making his final determination. See Trial trans. at 18-21. Defendant’s counsel subsequently withdrew the objection. See Trial trans. at 57.
Ordinance 49, § 1.2.3.1 states:
The civil jurisdiction conferred upon the Tribal Court by the provisions of Sections 1.2.1 and 1.2.2 . . . is hereby expressly limited to adjudications of disputes and matters arising under the provisions of the tribal ordinances, and enforcement of the provisions of the tribal ordinances.
In Hatch v. Cultee, 3 NICS App. 372, 374 (Tulalip 1995), this Court construed § 1.2.3.1 to limit the Tribal Court’s jurisdiction to “only those disputes and matters which arise under a specific Tribal Ordinance”.
Tulalip Tribes Resolution No. 95-0032, adopted February 9, 1995, amends Ordinance No. 49 by striking § 1.2 in its entirety and substituting several new provisions in its place, including the following relevant sections:
§ 1.2 The jurisdiction of the Tulalip Tribal Court shall extend, except as limited by federal or Tulalip tribal law, to (a) all persons natural and legal of any kind and to (b) all subject matters which, now and in the future, are permitted to be within the jurisdiction of any tribal court of a sovereign Indian tribe or nation recognized by the United States of America . . . . [Emphasis added].
. . . .
§ 1.2.3 The Tulalip Tribal Courts shall apply the laws and ordinances of the Tulalip Tribes, including the customs and laws of the Tribes, to all matters coming before the Courts; provided, that where no applicable Tulalip tribal law, ordinance, or custom can be found, the Courts may utilize, in the following order, federal statutes, federal common law, state common law, and state statutes as guides to decisions of the Courts.