SPIRIT ENTERPRISES. v. APPLEGATE CONSTRUCTION

6 NICS App. 47, SPIRIT ENTERPRISES. v. APPLEGATE CONSTRUCTION (May 2001)

IN THE SPOKANE TRIBAL COURT OF APPEALS

SPOKANE INDIAN RESERVATION

WELLPINIT, WASHINGTON

Spirit Enterprises, Appellee/Plaintiff,

Applegate Construction, Inc., Appellant/Defendant.

No: 2000-076 AP (May 2, 2001)

SYLLABUS^*

Trial court unable to produce transcript or tape recording of proceedings before trial court. Court of Appeals holds that appellate review is not possible absent a complete evidentiary record. Remanded for new trial on the record and entry of formal findings of fact and conclusions of law.

Before: Fred W. Gabourie, Sr., Chief Justice; Michelle Demmert, Justice; Elizabeth Fry, Justice.

OPINION

This matter came before the Spokane Tribal Court of Appeals for a conference call with Chief Justice Fred W. Gabourie, (Sr.) and Associate Justice Elizabeth Fry and the subsequent participation of Associate Justice Michelle Demmert concerning the Declaration of Alex Mollaei Re: Written Transcript Of Trial Court Proceedings, and Declaration Of Transcriber filed on May 21, 2001 by Appellant Applegate Construction, Inc. together with the Motion For Continuance Re: Filing Of Facts by Appellant Applegate Construction, Inc. filed May 22, 2001.

The parties to this appeal assign error both to factual findings and legal conclusions of the trial court. It is not possible for this Court to conduct a full and fair review of this matter, particularly in the face of the numerous factual disputes, without a complete record of the proceedings below.

The Court finds that the tape recording of the trial is defective and cannot be transcribed. The Court concludes that in light of the unique and extremely important issues presented by this case, the lack of a complete transcript precludes appellate review. The Parties and the Tribe deserve no less than a fully informed opinion from this Court. Remanding this action for a new trial is the only way to obtain such an opinion.

6 NICS App. 47, SPIRIT ENTERPRISES. v. APPLEGATE CONSTRUCTION (May 2001) p. 48

IT IS HEREBY DECREED and ORDERED that this action is remanded to the Trial Court for trial. The Trial court is requested to schedule a trial as expeditiously as possible, to record the proceedings in such a manner as to allow transcription of the proceedings, and to enter formal findings of fact and conclusions of law in rendering its decision.

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.