5 NICS App. 63, MOORE v. HOOPA (July 1998)

IN THE HOOPA VALLEY TRIBAL COURT OF APPEALS

HOOPA VALLEY INDIAN RESERVATION

HOOPA, CALIFORNIA

Edward Michael Moore, Appellant,

v.

Hoopa Valley Tribe, Respondent.

No. C-96-041 (July 7, 1998)

SUMMARY

The lower court found Appellant guilty of trespass and entered a judgment against him. Appellant made no payments for over eight months, at which time Respondent Tribe petitioned the court for enforcement of judgment.

At the show cause hearing, the trial court judge informed Appellant that he would consider which of Appellant’s assets might satisfy the judgment. Appellant’s spokesperson requested a continuance in order that he might become familiar with his client’s assets. The trial court granted the request and continued the hearing to a later date, at which time Appellant objected on the ground that he had not been notified of the reason for the hearing.

The trial court proceeded with the hearing and, finding Appellant had not satisfied the judgment, ordered seizure of personal property to satisfy the judgment. We affirm.

FULL TEXT

Before:            Elbridge Coochise, Chief Justice; Larry King, Justice; Dennis Nelson, Justice.

Appearances:  J. Bryce Kenny, spokesperson for Appellant, Edward Michael Moore; Jennifer Van der Heide, counsel for Respondent, Hoopa Valley Tribe.

Per curiam:

THIS MATTER came before the Hoopa Valley Tribal Court of Appeals pursuant to Edward Michael Moore’s Notice of Appeal filed on July 21, 1997, and received in this Court on September 8, 1997. Mr. Moore appeals from the trial court’s July 14, 1997 Judgment and Order. Mr. Moore alleges that the trial court erred in compelling him to testify about his personal assets without proper notice and in derogation of his rights under 25 U.S.C. §1301 et seq.

5 NICS App. 63, MOORE v. HOOPA (July 1998) p. 64

I. BACKGROUND

On September 17, 1996, the Hoopa Valley Tribal Court found Appellant, Edward Michael Moore, liable for trespass as a result of his involvement in the unlawful harvesting of tribal timber. The court entered a judgment against Mr. Moore in the amount of $18,508.50, payable to the Hoopa Valley Tribe.

Mr. Moore made no payments on the judgment for over eight months. On June 2, 1997, the Hoopa Tribal Forestry, on behalf of the Hoopa Valley Tribe, filed an application for Enforcement of the Judgment. On June 18, 1997, the trial court issued an Order to Show Cause requiring Mr. Moore to appear before the court on July 1, 1997.

Mr. Moore appeared at the show cause hearing with his spokesperson, Mr. Bryce Kenny, who voiced his concern that the Order to Show Cause threatened Mr. Moore with contempt of court for failure to pay his judgment. At that time, the lower court judge clarified that Mr. Moore “would only be in contempt if he failed to appear for this hearing.” Transcript of Show Cause Hearing 7/1/97, 2 : 1. The judge then proceeded to explain the nature of the hearing:

What we have is an application for Enforcement of Judgment, and the amount of judgment that has not been satisfied is eighteen thousand, five hundred and eight dollars and fifty cents. Basically what we’re trying, they asked for seizure of a log truck as a way of satisfying judgment, but we’re willing to hear any other assets Mr. Moore might have in order to satisfy judgment.

Transcript of Show Cause Hearing 7/1/97, 2 : 6 -11. Mr. Kenny then requested:

. . . a continuance on this issue if I can, just because of the fact that I was just retained last Friday. I really have not had an opportunity to become familiar with the facts and circumstances of my clients [sic] assets to warrant, to effectively represent him in proceedings this morning.

Transcript 7/1/97, 2 : 12 - 16.

The parties agreed to continue the hearing to July 10, 1997. Mr. Moore and Mr. Kenny appeared on July 10, 1997 and, after objecting to the purpose of the hearing on the ground that Mr. Moore had not been notified of the reason for the hearing, submitted to the “debtor’s examination.”

In a July 14, 1997 Judgment and Order, the trial court found that Mr. Moore had not satisfied the September 16, 1996 judgment against him and ordered seizure of a truck and a track loader to satisfy the judgment. Mr. Moore now appeals from that Order, alleging that the trial court erred in compelling him to testify about his personal assets without proper notice as to the nature of the hearing.

5 NICS App. 63, MOORE v. HOOPA (July 1998) p. 65

II. JURISDICTION

This Court has personal jurisdiction over Appellant, Edward Michael Moore because he resides on the Hoopa Valley Reservation. The act which is the subject of this appeal occurred within the exterior boundaries of the Hoopa Valley Indian Reservation, giving rise to territorial jurisdiction. This Court has subject matter jurisdiction over this matter pursuant to Title I, §1.1.04 of the Hoopa Valley Tribal Code.

III. DISCUSSION

A. Timeliness

We address as a preliminary matter the timeliness of Mr. Moore’s opening brief. In its October 7, 1997 Order Accepting Appeal and Setting Briefing Schedule, this Court ordered Appellant to file his opening brief “[n]o later than 4:00 p.m., Monday, October 27, 1997.” Mr. Moore filed his brief on October 29, 1997. To this Court’s knowledge, Mr. Moore did not file a motion to extend the time for filing his brief. Respondent Tribe now urges this Court to dismiss Mr. Moore’s appeal for failure to timely file his opening brief.

The Hoopa Valley Tribal Code does not provide an express procedure to be followed when an Appellant fails to file his opening brief in a timely manner. This Court strongly disapproves of any party’s disregard of orders of this or any court and Mr. Moore and his spokesperson are admonished that willful violation of court orders may carry serious consequences. Nevertheless, in this instance, this Court feels there has been no prejudice to the parties resulting from Mr. Moore’s late filing. Therefore, Respondent Tribe’s motion to dismiss for lack of timely filing of Appellant’s Opening Brief is denied.

B. Notice

Mr. Moore alleges that the trial court denied him due process when it proceeded to hear testimony regarding his assets without providing prior written notice of the nature of the hearing. The minimum requirements of due process are some form of notice and an opportunity to be heard. In the Matter of Robertson, 4 NICS App. 111, 114 (Hoopa 1996).

Mr. Moore argues that the only written notice he received required his appearance in court to show cause why he should not be held in contempt for failure to pay a money judgment. Mr. Moore further argues that “[a]ppellant should not be expected to perform acts of clairvoyance in order to cipher what the court’s real purpose for requiring his appearance was.” Appellant’s Opening Brief at 4.

This Court understands that there was some confusion caused by the language in the trial court’s Order to Show Cause. Nevertheless, on July 1, 1997, the court clarified its order and

5 NICS App. 63, MOORE v. HOOPA (July 1998) p. 66

informed Mr. Moore that it would hear testimony regarding any assets Mr. Moore held that could be used to satisfy the judgment. Transcript 7/1/97, 2 : 1. Appellant requested “a continuance on this issue” because his spokesperson had “not had an opportunity to become familiar with the facts and circumstances of my clients [sic] assets to warrant, to effectively represent him in proceedings this morning.” Thus, as of July 1, 1997, Appellant was on notice as to the nature of the continued hearing. Further, Appellant and his spokesperson participated in choosing the date of the continued hearing. If Appellant was still unclear about the purpose of the continued hearing, it was incumbent upon him or his spokesperson to ask for clarification before the conclusion of the July 1, 1997 hearing.

Finally, at the start of the July 10, 1997 hearing, Mr. Moore’s spokesperson requested a decision on a motion he had filed: “So, I think that it would be proper for the court to take that under submission, and make a ruling before we go any further in the way of a debtor’s examination.” Transcript 7/10/97, 1 : 19-21 [emphasis added]. Appellant’s current protestations notwithstanding, it is clear from this statement that Appellant was well aware of the nature of the hearing.

Therefore, based on the foregoing, it is hereby ordered that Appellant Edward Michael Moore’s appeal is dismissed.

IV. COSTS

Respondent Tribe requests that the Court assess the costs of this appeal against Mr. Moore. The tribe’s motion for costs is denied; each party shall bear its own costs.