6 NICS App. 22, CHARLES v. ELOFSON-GILBERTSON (June 2000)
IN THE LOWER ELWHA KLALLAM TRIBAL COURT OF APPEALS
LOWER ELWHA KLALLAM INDIAN RESERVATION
PORT ANGELES, WASHINGTON
Dennis B. Charles, Appellant,
v.
Niki Elofson-Gilbertson, Respondent.
No. 04-01-99 (June 20, 2000)
SYLLABUS*
Trial court unable to produce tape recording or transcript of proceedings before trial court. Court of Appeals holds that appellate review is not possible absent a complete evidentiary record. Remanded for new hearing on the record.
Before: Christopher P. Williams, Chief Justice; Lisa E. Brodoff, Justice; Lorintha Warwick, Justice.
OPINION
This matter came before the Lower Elwha Tribal Court of Appeals on its own motion. This Court has recently confirmed that there is no tape recording of the lower court proceedings in this matter. Title VII, § L provides that appeals "shall be decided on the basis of the trial court record and any written and oral arguments presented by the parties." Section G(l) defines the record as "all papers filed in a case plus the tape recordings and/or transcript made of all court hearings in the case." The absence of a complete lower court record precludes full and fair appellate review of this matter.1
Appellant raises in his notice of appeal both issues of law and of fact. This Court of Appeals may review issues of law de novo; however, absent statutory authority to the contrary, factual findings fall exclusively within the trial court's province. Title VII, § L does allow the Appellate Court to consider additional evidence if refusal to do so "would result in a clear injustice." This Court distinguishes, however, between taking additional evidence and holding an entirely new hearing; the latter we decline to do.
6 NICS App. 22, CHARLES v. ELOFSON-GILBERTSON (June 2000) p. 23
In the absence of a complete evidentiary record, this Court cannot fairly review the trial court decision. Therefore, based on the foregoing, it is hereby ordered that this appeal is dismissed. It is further ordered that this matter is remanded to the trial court or a new hearing on the record. In addition to its review of all other relevant evidence and issues, the trial court is instructed to provide fact‑finding on the following:
1) the existence and terms of a valid and binding partnership agreement or other contract between Dennis Charles and Ervin Gilbertson, including not limited to:
a) the date of execution of the agreement:
b) any terms regarding profit‑sharing;
c) each party's contribution of money, material and labor;
d) apportionment of risk; and
2) the existence and terms of any assignment of interest in the above‑mentioned agreement to Niki Elofson‑Gilbertson including the date of such assignment.
The syllabus is not a part of the Court's Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this Reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.
Case law from other jurisdictions is not binding upon the Lower Elwha tribal courts; however, it is useful as guidance. See, for example, Suquamish Indian Tribe v. Purser, 2 NICS App. 176, 178 (Suquamish 1992) (Appellate Court refused to review in absence of complete transcript); Olin v. Wagner, 4 NICS App. 94, 95 (MIC 1996).