4 NICS App. 142, GARCIA v. SPSITHA (November 1996)
IN THE HOH TRIBAL COURT OF APPEALS
HOH INDIAN RESERVATION
FORKS, WASHINGTON
Lisa Garcia (Ashue), Appellant
v.
Southern Puget Sound Intertribal Housing Authority, Respondent
NO. HOH-CIV-12/95-029 (November 18, 1996)
SUMMARY
Appeal from trial court judgment and order to vacate. Individual who is neither a party to MHO Agreement nor an approved sub-lessee has no legally protectible interest in the home and has no standing to contest eviction. Individual with no legally protectible property interest in MHO Agreement is not an indispensable party. Party’s status notwithstanding, continued failure to pay arrearages and rent while continuing to occupy premises constitutes breach of MHO Agreement. We affirm.
FULL TEXT
Before: Charles R. Hostnik, Chief Justice; Robert J. Miller, Justice; Christopher P. Williams, Justice.
Appearances: David Bell, Executive Director, on behalf of Respondent Southern Puget Sound Intertribal Housing Authority; Phillip Ashue, amicus; Robert McCarthy, attorney for Mr. Ashue. Appellant Lisa Garcia (Ashue) did not appear.
This matter came before the Hoh Tribal Court of Appeals pursuant to Appellant’s Notice of Appeal filed on June 14, 1996. Ms. Garcia appeals the Judgment and Order to Vacate entered by the Hoh Tribal Court on June 6, 1996.
On September 23, 1996, Phillip Ashue petitioned the court for leave to appear in amicus status. Mr. Ashue is Ms. Garcia’s former spouse and currently resides with the couple’s children in the house which is the subject of this appeal. There was no opposition to the amicus petition. This Court granted Mr. Ashue’s petition in open court on October 4, 1996, and treated him as a party for purposes of the appeal.
I. JURISDICTION
This Court has personal jurisdiction over Appellant Lisa Garcia because she is a member of
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the Hoh Indian Tribe. This Court has personal jurisdiction over Ms. Garcia’s children and over Phillip Ashue because they reside on the Hoh Indian Reservation. The act which is the subject of this appeal occurred within the exterior boundaries of the Hoh Indian Reservation, giving rise to territorial jurisdiction. This Court has subject matter jurisdiction over this matter pursuant to Section 5 of the Hoh Tribal Court Procedures Ordinance, Section 2 of the Hoh Eviction Procedures Ordinance, and Hoh Tribal Ordinance No. 80-01-01 (Housing Ordinance), Art. VIII, § 1(f).
II. STATEMENT OF FACTS
On January 8, 1987, Lisa Garcia (Ashue)1 entered into a Mutual Help and Occupancy (hereinafter “MHO”) Agreement with the Southern Puget Sound Intertribal Housing Authority (hereinafter “Housing Authority”). Ms. Garcia was the sole signatory on that agreement.
On November 24, 1992 Ms. Garcia requested permission from the Housing Authority’s Board of Commissioners to sublease her home to Mr. Ashue for one year. There is no evidence in the record that the Board of Commissioners took any action on this request until February 24, 1994. (See below).
On January 20, 1993 Ms. Garcia requested permission to sublease her home to her ex-husband, Phillip Ashue, and their children, all of whom are non-members of the Hoh Tribe. There is nothing in the record showing whether Ms. Garcia received permission at that time.
At a February 24, 1994 meeting, the Board of Commissioners recommended approval of a one-year sublease to Phillip Ashue “contingent on full payment of the balance [of monthly rental payments in arrears] and that Lisa return to her home when finished with school . . . .” The Housing Authority’s Head Counselor notified Ms. Garcia on February 25, 1994 that the Board of Commissioners had approved the sublease. The arrearage was paid on March 2, 1994. There is no evidence in the record that a sublease was ever executed.
The Hoh Tribal Business Committee on February 6, 1995 passed a resolution approving “renewal of sublease” between Ms. Garcia and Mr. Ashue. On February 13, 1995 Ms. Garcia requested permission from the Housing Authority to sublease the home to Mr. Ashue and the children “for another year.” Again, there is no evidence that a sublease to Phillip Ashue was ever signed.
A Housing Authority account record shows that between June of 1993 and March of 1994, Ms. Garcia’s account was brought current on two occasions – once on August 5, 1993 and again on
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March 2, 1994. Over the course of the next year, six more payments were made; the account was brought current on four occasions. From March 13, 1995 until January 4, 1996 no further payments were made. By January 4, 1996 the account was $2,247.00 in arrears.
On September 12, 1995, the Housing Authority sent a Notice of Delinquency to Ms. Garcia to notify her that her account was delinquent by $1,430.00 and that the arrearage was due within ten days of receipt of the notice. On October 24, 1995, the Housing Authority sent her a Notice of Termination, notifying her that her tenancy and the MHO Agreement would be terminated in thirty days for failure to make her house payments.
The Housing Authority on November 20, 1995 notified Ms. Garcia of a meeting scheduled with the Executive Director for November 27, 1995 to discuss her tenancy.
On December 1, 1995 Ms. Garcia and Mr. Ashue signed a “Will Pay Agreement” wherein Mr. Ashue agreed to pay $437.00 a month for a period of six months, and then $274.00 a month until the $2,252.00 delinquency was cured. Mr. Ashue also signed a Contract Authorizing Hoh Social Services to assist him in making his payments.
On December 20, 1995, the Housing Authority sent Ms. Garcia a letter informing her that her account was now $2,252.00 past due and, because of her failure to bring her account current, they would issue eviction papers.
On December 21, 1995 the Housing Authority filed a Complaint for Unlawful Tenancy against Ms. Garcia. The complaint alleged that Ms. Garcia had failed to make payments of $2,252.00 and had remained in unlawful occupancy for thirty days from receipt of the Notice of Termination. The Housing Authority sought an Order to Vacate, possession of the property, payment of the balance due, and monies for any damage to the premises. Trial was set for January 4, 1996.
On January 4, 1996, pursuant to a mediation conference before trial, Ms. Garcia signed an Agreed Order in which she agreed that she had breached the MHO Agreement and that she was guilty of unlawful detainer. The Housing Authority agreed to temporarily forego eviction proceedings as long as Ms. Garcia fully complied with the Agreed Order. The Agreed order contained specific provisions for Ms. Garcia to make her monthly payments and to complete a sublease with Mr. Ashue. Additionally, the parties agreed that her failure to comply with the Agreement would entitle the Housing Authority to automatically evict the tenants.
On February 21, 1996, Ms. Garcia was resummoned to appear on March 7, 1996 for failure to comply with the agreed order. An April 1, 1996 Notice informed Ms. Garcia and Mr. Ashue that the review hearing was scheduled for April 4, 1996. On April 4, 1996, Ms. Garcia and Mr. Ashue signed an MHO Agreement and Delinquent Homebuyer Payments Schedule and Addendum, wherein
4 NICS App. 142, GARCIA v. SPSITHA (November 1996) p. 145
Ms. Garcia agreed that she owed the Housing Authority $3,069.00 in delinquent payments through April of 1996 and acknowledged that Mr. Ashue had been living in the house for the preceding two years without a sublease approved by the Housing Authority.
Mr. Ashue agreed to make up the delinquent payments through payroll deductions in monthly installments of $230.00. Further, the parties agreed that in the event of a default by Mr. Ashue, the tenants and Ms. Garcia would surrender the dwelling within thirty days of notice by the Housing Authority, forfeit any rights of appeal, and return the dwelling to the possession of the Housing Authority. Mr. Ashue also agreed to abide by all conditions of the MHO Agreement. On April 25, 1996 Mr. Ashue made a $1,000.00 payment to the Housing Authority, which reduced the delinquency from $3,069.00 to $2,069.00. Neither he nor Ms. Garcia has made any payment since that time. However, Mr. Ashue and the children continued to occupy the home.
In a May 2, 1996 letter to the Housing Authority, the Chairwoman of the Hoh Tribal Business Committee requested, on behalf of the Tribe, that Mr. Ashue and the children be evicted because they were non-members living in housing designated by the Tribe for its members. She further indicated that although the sublease had been approved by the Housing Authority, the Hoh Tribal Business Committee had never approved it.
The review hearing was held on June 6, 1996. At the hearing, the Housing Authority requested a judgment and order to vacate the premises. The trial court, finding Ms. Garcia guilty of unlawful detainer, ordered her and all occupants of the house to vacate the property within twenty days or be subject to eviction. Possession of the property was restored to the Housing Authority, as was $2,866.70 for money still owed under the MHO Agreement.
Ms. Garcia and Mr. Ashue both filed a Notice of Appeal on June 14, 1996. They cite several grounds for their appeal including: (1) the notice of eviction was not discussed with the homebuyer; (2) Mr. Ashue had paid the required $1,000.00; and (3) the home had been changed over to the name of Ms. Garcia’s son, Ervinjames, at the request of the Board of Commissioners.
Mr. Ashue is not a party of record; however, on September 23, 1996 he petitioned this Court for leave to appear in amicus status. This Court granted Mr. Ashue’s petition on October 4, 1996.
This Court accepted the appeal on July 10, 1996 and heard the matter on October 4, 1996. Ms. Garcia did not file an appellate brief and did not appear for oral arguments. Beyond filing her notice of appeal, she did not participate further in the proceedings before this Court.
III. ISSUES ON APPEAL
The issues on appeal are as follows:
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1) Whether Phillip Ashue has standing to contest the trial court decision, either individually or as his children’s representative?
2) Whether the trial court erred in entering an eviction order against Mr. Ashue without his full participation in the proceedings?
3) Whether Mr. Ashue’s due process rights were violated by the eviction order?
4) Whether there was substantial evidence to support the trial court’s eviction order?
IV. DISCUSSION
A. Amicus
Phillip Ashue, ex-husband of the MHO homeowner, Lisa Garcia, petitioned this Court to appear as an amicus due to his individual interest in the MHO home after living there for as many as three years, or as the representative guardian of his children’s interest in the home. This Court granted the motion. Mr. Ashue then moved the Court to vacate the Hoh Tribal Court judgment evicting Ms. Garcia and her family from the Housing Authority home.
B. Standing
We hold that individually Mr. Ashue does not have standing to contest the lower court’s decision because he does not have a protectible property interest in this home. Mr. Ashue is not a signatory to the MHO agreement. Furthermore, by Mr. Ashue’s own admission, there never has been an approved and consummated sub-lease agreement granting him any interest in this home. See April 4, 1996 Agreement between Garcia, Ashue, and SPSITHA.2
Mr. Ashue also tries to appear in a representative capacity to protect his interest, and that of the couple’s children, in the MHO home. Mr. Ashue did not move to be appointed as a guardian ad litem for his children. Even overlooking that issue, we hold that Mr. Ashue does not have any protectible interest in the MHO home as a guardian, because his children do not have any legally
4 NICS App. 142, GARCIA v. SPSITHA (November 1996) p. 147
protectible interest in the home.3 While Ms. Garcia and others talked about assigning her interest in the home to one of her children and perhaps even took steps toward doing so, a sub-lease between the Housing Authority and one of Ms. Garcia’s children never occurred. See April 4, 1996 Agreement between Garcia, Ashue, and SPSITHA. Furthermore, it is doubtful whether the Housing Authority could enter a legally binding contract with a minor.4
Mr. Ashue lacks standing to be a party to this action due to his failure to have a protectible legal interest either individually or in a representative capacity.
C. Indispensable Party
Mr. Ashue’s failure to possess a legally protectible interest in the MHO home individually or as a representative also dispenses with his argument that he is an indispensable party and that the trial court erred in rendering an eviction order without his full participation. Since Mr. Ashue has no interest in the MHO home, he has no interest that needed to be protected. Fed. R. Civ. P. 19.
Even if Mr. Ashue had some interest, FRCP 19 was not violated because his alleged interests were fully represented by a party, Ms. Garcia. See Makah Indian Tribe v. Verity, 910 F. 2d 555, 558 (9th Cir. 1990).
Furthermore, Mr. Ashue was involved and fully participated in delinquency and eviction proceedings such as the April 4, 1996 agreement between himself, Ms. Garcia, and the Housing Authority; and at the June 6, 1996 trial which led to this appeal. He was a de facto party to the proceedings below.
4 NICS App. 142, GARCIA v. SPSITHA (November 1996) p. 148
D. Due process
Mr. Ashue alleges that his due process rights under the Indian Civil Rights Act and the United States Constitution were violated. When determining how much process is due in a situation, a court must employ the following test: (1) the private interest that will be affected by official action; (2) the risk of erroneous deprivation of such interests through the procedures currently used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government’s interest including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements would entail. Matthews v. Eldridge, 424 U.S. 319, 335 (1976).
In this situation where, first, Mr. Ashue does not have a protectible legal interest in the MHO home, he was not due any process at all. Nevertheless, Mr. Ashue received a considerable amount of process. The Housing Authority followed all its procedures in giving the delinquency notice and following the eviction proceedings regarding his occupancy and use of the MHO home. Thus, any additional procedures would have no value in this case in protecting his alleged rights. Mr. Ashue received all the process he was due and more.5
E. Failure to Pay Rent
Even if we assume that Mr. Ashue had standing or an interest in the subject matter of this suit, we hold that Lisa Garcia and Phillip Ashue have breached the April 4, 1996 Agreed Order and that eviction was proper.
It is undisputed that Phillip Ashue resided in the home for at least six months preceding the trial court’s decision in this case. The record indicates he may have been residing in the home since January of 1993. See Exhibit D #2 (filed April 4, 1996); Housing Authority Exh. B. It is clear the Housing Authority was aware of his occupancy for a considerable period of time.
Lisa Garcia was the only signatory on the Mutual Help and Occupancy Agreement that permitted Ms. Garcia and her family to occupy the home; her husband did not sign that Agreement. See Housing Authority Exh. A. However, the Housing Authority was aware that her family included her husband, Phillip, and several children. See Housing Authority Brief, p. 2, para. 1. Art. 4.4 (a)(1) of the MHO permitted Ms. Garcia and the members of her family to occupy the home.
A condition of continued occupancy was the timely payment of monthly rent. See MHO, art.
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V. Failure to make monthly payments subjects the homebuyer to an action for eviction. See MHO, Art. 9.1(a).
The Housing Authority introduced into evidence an accounting of all charges and payments made to Ms. Garcia’s account since June 1, 1993. See Housing Authority Exh. S. That accounting shows that the last date that Ms. Garcia was current in her rent obligation was March 13, 1995. Subsequent to that date only two payments were made: one in the amount of $279.00 on January 4, 1996; and one in the amount of $1,000.00 on April 25, 1996. With the exception of those two payments, no payments were made on the monthly rent obligation of $274.00; nonetheless, Lisa Garcia’s family continued to occupy the home. At the time the trial court issued its eviction order for nonpayment of rent in June of 1996, the sum of $2,866.70 was owed to the Housing Authority.
This clearly is not a case where the Housing Authority has been rigid in its approach to the continued failure of the Ashues to pay rent when due. The recent history of this matter shows that the Housing Authority issued a Delinquency Notice in September of 1995, which was ignored. A Notice of Termination followed on October 24, 1995. A follow-up letter was issued on November 20, 1995. The Social Services agency of the Hoh River Tribe in December of 1995 offered to pay Housing directly out of Phillip Ashue’s paycheck, but no payment was ever made. Another letter was sent from the Housing Authority to the Ashues in December notifying them that they continued to fail to cure the arrearage, and eviction action was imminent. See Housing Authority Exhs. I - M.
Even after court action was initiated, the Housing Authority agreed to allow the Ashues to stay in the residence, and worked out a payment plan with them. See Housing Authority Exh. N. Apparently, the agreed payments were not made, and the matter came again before the court on April 4, 1996. At that time another agreement was signed, requiring the minimum payment of $1,000.00 before April 25, 1996, plus monthly payments. Although the $1,000.00 payment was made, no monthly payments were ever sent to the Housing Authority.
It is particularly disturbing that Phillip Ashue has filed an appeal requesting the trial court’s order of eviction for nonpayment of rent be overturned, but has continued to occupy the home without paying any rent since the trial court decision was issued. He claims to be able to immediately pay all amounts owed to the Housing Authority, including amounts for rent for the months of July through October, 1996. However, he stated in oral argument that since he was not sure whether this Court would allow him to stay in the home, he was not willing to make any payment on that arrearage to the Housing Authority. Mr. Ashue’s good faith in filing his appeal is in question in view of his continued occupancy of the home while refusing to pay even current rent.
Regardless of the merits of any argument raised by Mr. Ashue or Ms. Garcia in this appeal, the fact remains that both parties were substantially in arrears on their rent obligation at the time the trial court issued its eviction order. The Ashue family continued to occupy the home, and did not pay rent. This is a breach of their agreement with the Housing Authority, and is not fair to the many
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community members who are waiting for a home to become available on the Hoh Reservation. By willfully failing to pay rent, the Ashues have lost their right to continue to occupy the home. The trial court had no choice but to evict the Ashues. See Hoh Eviction Ordinance, § 4(b)(1). That decision was correct and will be upheld by this Court.
V. ORDER
Therefore, it is hereby ordered that the June 6, 1996 Judgment and Order to Vacate is affirmed.
It is further ordered that if Ms. Garcia, Mr. Ashue, and all other occupants fail to remove themselves from the premises within twenty days of filing of this Order, then Tribal law enforcement officers shall enforce the Order by evicting all occupants and their personal property from the premises.
It is further ordered that sole possession of the premises is restored to the Southern Puget Sound Intertribal Housing Authority.
It is further ordered that Ms. Garcia shall pay the Southern Puget Sound Intertribal Housing Authority $3,713.00 for money owing under the terms of the Mutual Help and Occupancy Agreement, and judgment shall issue against her for that amount.
Lisa Ashue has signed documents using the surnames “Leitka,” “Garcia,” and “Ashue” in varying combinations. For purposes of this Opinion, we will refer to Appellant as Ms. Garcia, the name Appellant uses in her Notice of Appeal.
A sublease would only have been effective for one year and all subleases had to be approved by the Commissioners of the Housing Authority. The fact that the Tribal Council perhaps voted to approve a sublease to Mr. Ashue does not mean a sublease was ever finalized and approved by the Housing Authority’s Board of Commissioners. In fact, in the April 4, 1996 agreement Mr. Garcia and Mr. Ashue admit that there never has been a finalized and approved sublease of the MHO home to Phillip Ashue.
The Hoh Tribal Council has enacted a resolution that Hoh Housing Authority homes are for Hoh members only. Hoh Resolution 05-01-88. We find nothing in our review of federal Indian law, and Mr. Ashue cites no authority, in support of the argument that this is an illegal act by the Council. In fact, the 1994 amendments to the Indian Self-Determination Act allow tribes to prefer tribal members over Indians in general in “638" contracting situations. 25 U.S.C. § 450e(c). The Hoh resolution appears to be a proper exercise of tribal sovereign power.
The Ashue children could be enrolled Hoh tribal members. Hoh Constitution Art. II, § 1(b). However, their parents have chosen to enroll them in the Yakama Tribe. Federal law regarding the Hoh tribal roll does not allow dual tribal enrollment. Pub. L. 89-655, 80 Stat. 905 § 2, Oct. 14, 1966. Thus, the Ashue children cannot claim an interest in the MHO home based on their purported Hoh membership.
24 C.F.R. § 950-449(e) grants an Indian Housing Authority discretion to protect a minor child’s opportunity to acquire ownership of or to occupy the MHO in the “event” of death or disability of the MHO homebuyer. The IHA can do this by approving as the occupant of the home, with a duty to perform the obligations of the MHO Agreement, an adult who has been appointed legal guardian of the children. The Southern Puget Sound Intertribal Housing Authority has perhaps defined a divorce, such as in this case, as being an “event” which could trigger the Housing Authority’s discretion to provide for continued occupancy of the home by the minor children and their legal guardian. Housing Authority Exh. V; 24 C.F.R. § 950.449(e). However, the Housing Authority never took that action, nor is it required to do so by the regulations. 24 C.F.R. § 950.449(e) (a housing authority may approve as an occupant of an MHO home the guardian of minor children).
Mr. Ashue cites Kopanuk v. AVCP Regional Housing Authority, 902 P.2d 813 (Alaska 1995) for the proposition that an eviction action against an MHO homebuyer violates due process. The Alaska Supreme Court did not so hold. That court only held that the Alaska state district court did not have subject matter jurisdiction over a forcible entry and detainer action by a state agency against an MHO homebuyer because the homebuyer possessed equitable interests and by state law Alaska district courts do not have jurisdiction over equitable actions. Id. at 817.