7 NICS App. 22, HOOPA VALLEY HOUSING v. LEWIS (May 2005)
IN THE HOOPA VALLEY TRIBAL COURT OF APPEALS
HOOPA VALLEY INDIAN RESERVATION
HOOPA, CALIFORNIA
Hoopa Valley Housing Authority, Plaintiff/Appellee,
v.
Brenda Lewis, Defendant/Appellant.
No. C-04-027/A-04-008 (May 2, 2005)
SYLLABUS*
Trial court entered default judgment for unlawful detainer; granted Defendant’s motion for reconsideration; and then reinstated the default judgment following a hearing on the merits at which Defendant appeared. Court of Appeals holds that failure to provide Defendant adequate notice of the original trial and subsequently shifting the burden of persuasion to the Defendant at the hearing following the motion for reconsideration violated Defendant’s due process rights. Trial court order reversed.
Before: Mary L. Pearson, Chief Justice; Arthur E. Fisher, Justice; James S. Underwood, Justice.
Appearances: David Dehnert, for Hoopa Valley Housing Authority.
OPINION
SUMMARY
Housing Authority filed action for unlawful detainer. Trial1 was originally set for March 19, 2004. Upon Motion of Housing Authority, trial was continued to June 24, 2004, but trial court failed to comply with its own rules governing notice to Defendant of the new trial date. Defendant failed to appear at trial and default judgment was entered against Defendant. Upon
7 NICS App. 22, HOOPA VALLEY HOUSING v. LEWIS (May 2005) p. 23
receipt of default judgment, Defendant/Appellant filed Motion for Reconsideration. Trial court granted Defendant’s Motion for Reconsideration and held a hearing at which Defendant appeared and both parties were allowed to present evidence. Following this hearing, trial court reinstated the default judgment. Court of Appeals holds that the trial court’s failure to provide proper notice of trial to Defendant deprived Defendant of due process and impermissibly shifted burden of persuasion to Defendant at the hearing following the motion for reconsideration. Court of Appeals also holds that Housing Authority failed to provide proper notice to Defendant after accepting payments from her. Trial court Order is reversed.
The Hoopa Valley Tribal Court of Appeals was called to Order on March 4, 2005, Chief Justice Mary L. Pearson, Associate Justice James Underwood, and Associate Justice Arthur E. Fisher presiding. The courtroom was staffed and the proceedings recorded by the Hoopa Valley Tribal Court Clerk. Mr. David Dehnert, counsel for Appellee Hoopa Valley Housing Authority, appeared telephonically by leave of the Court. The Appellant, Brenda Lewis, failed to appear. The panel briefly adjourned to give the Court Clerk time to check to see if Ms. Lewis was in or near the court. The Clerk was unable to locate Ms. Lewis. Court resumed and oral argument was heard from Mr. Dehnert.
Should the Appeal be Considered?
The first issue before the appellate panel is to determine whether this matter should be dismissed because Appellant failed to appear for oral argument. The panel looked at the Appellate Rules and the Rules of Civil Procedure. While the Rules of the trial court require that parties appear, there is nothing in the Appellate Rules or in the Appellate Court’s Scheduling Order that make an appearance at oral argument mandatory. Appellant appears before this panel pro se. Appellant submitted a brief addressing what she thought were the issues. Based in part on Title 3 Hoopa Valley Tribal Code Rule 68, which allows the Court to hold a pro se party to a lower standard of compliance regarding rules of procedure, the panel decided to determine the appeal on its merits rather than dismiss the appeal based on an unclear procedural rule.
What is the Standard of Review?
The second issue is what standard of review does the appellate panel apply?
While Appellant did not claim a violation of her due process rights, the panel looked to see if such an issue exists.2 The panel identified a due process issue that requires de novo review. That issue is whether the Appellant had proper notice of the trial on eviction for non-payment of rent.
7 NICS App. 22, HOOPA VALLEY HOUSING v. LEWIS (May 2005) p. 24
Discussion:
There is no doubt that Appellant owes the Housing Authority a large sum of money and has for some time. A Notice of Delinquency was sent to Appellant on December 17, 2003 informing her that an eviction action would be filed against her for non-payment of rent. This notice was followed by a Notice of Termination on January 15, 2004 and the filing of a summons and complaint that were personally served on Appellant on March 9, 2004.
Appellant argued that she had an agreement with the Hoopa Valley Housing Authority to deduct payments every two weeks from the paycheck of her significant other, Billy Peters. Mr. Peters was working for the Housing Authority and signed an agreement to allow the deductions from his pay to be assigned to Ms. Lewis’ account with the Housing Authority. Between March 4, 2004 and June 22, 2004, seven deductions of $115 from Mr. Peters’ paycheck were applied to Ms. Lewis’ account.3 Payments to Ms. Lewis’ account from Mr. Peters’ payroll deduction ceased on June 22, 2004.
On May 5, 2004, the Clerk of the Tribal Court mailed the parties a Notice of Hearing setting the trial on the complaint for unlawful detainer for May 19, 2004. On May 19, 2004, the presiding Judge of the trial court signed an Order granting a Motion for Continuance filed by the Housing Authority. The Order reset the trial for June 24, 2004. This Order was entered in the trial court file on May 21, 2004. However, the Order was not mailed to the parties by the Clerk of the Court until June 15, 2004.
The Hoopa Valley Tribal Code provides that “Notice of hearings and trials is to be provided at least five (5) days in advance if the parties are personally served, and ten days if notice is delivered by mail.” HVTC § 2.3.23. “When a time limit is counted from the time that notice is delivered to a person by mail, it shall be presumed that delivery takes place five days after notice is mailed.” HVTC § 2.3.23(a). Here, the Clerk’s delay in mailing the Order to Defendant violated both § 2.3.23 and § 2.3.23(a) and thereby denied Defendant adequate notice of the trial required by the Code.
Appellant did not appear at the June 24 trial on the merits. The trial court admitted testimony and evidence from the Housing Authority, found that the Housing Authority had proved its case by a preponderance of the evidence, and granted the Housing Authority’s motion for default judgment. Upon receipt of service of the Order of Eviction and Judgment, Appellant filed a Motion for Reconsideration with the trial court on August 19, 2004. Although the Hoopa Valley Code does not provide for Motions for Reconsideration per se, motions of a general nature are provided for under HVTC § 2.3.18. For good cause shown, the Hoopa Valley Tribal Court may set aside an entry of default judgment. Title 3 HVTC, Rule 30(b).
7 NICS App. 22, HOOPA VALLEY HOUSING v. LEWIS (May 2005) p. 25
The Motion for Reconsideration was granted and a hearing was held on September 30, 2004. The Housing Authority was represented by its counsel and Appellant appeared pro se. The Housing Authority introduced evidence of the arrearage. The Housing Authority introduced other damaging evidence that was not within the scope of the original complaint for judgment and eviction. Whether the trial court considered any evidence other than the failure to pay rent is unknown since it is not reflected in the court’s decision. Following the September 30 hearing, the trial court issued the Order that is the subject of this appeal. That Order states “[t]he defendant was given her time in court to present information which might create a change in information, however, after hearing the evidence provided the court did not find a reason to reverse the [trial court’s original] decision.” Order Following Hearing, signed October 6, 2004, entered October 7, 2004, at 2 (emphasis added).
As the trial court’s Order indicates, the burden of proof required of a movant at a hearing on reconsideration is considerably different than that of a defendant at a trial in a civil action. At trial, the burden is on the plaintiff to show by a preponderance of the evidence that the complaint is true. HVTC § 2.1.02. Upon the grant of a motion for reconsideration, the burden shifts to the movant to show that there is a basis for reversing the original decision. Any decision by the trial court based on the motion for reconsideration is discretionary. The express statements in the trial court’s final Order that the trial court allowed Defendant the opportunity to “present information which might create a change in information” and the trial court did not find a basis to “reverse” its initial order clearly establish that the trial court placed the burden of persuasion on the Defendant at the September 30 hearing.
We hold that the Appellant was denied due process. Appellant was not afforded a trial at which proper notice was provided and the trial court did not apply the proper burden of proof. We remand for a new trial after proper notice to the Defendant at which trial the Housing Authority shall bear the burden of proof and persuasion.
This Court is also concerned that the procedures followed by the Housing Authority itself may have deprived Defendant of due process. Appellant’s Motion for Reconsideration raised the defense that there was an agreement between the Housing Authority and her common law spouse Billy Peters to allow deductions from his paycheck to address the arrearages.4 While inartfully worded, the Motion can be construed as stating a claim that there was no notice to Ms. Lewis that the partial garnishment of Mr. Peters’ wages had not satisfied the Complaint for unlawful detainer and notice of eviction and that she was again in danger of having her contract terminated because the payments had ceased.
7 NICS App. 22, HOOPA VALLEY HOUSING v. LEWIS (May 2005) p. 26
The record establishes that the Housing Authority addressed the December 17, 2003 Notice of Delinquency and the January 12, 2004 Notice of Termination to both Ms. Lewis and Mr. Peters, even though Mr. Peters was not a party to the Mutual Help and Occupancy Agreement (MHOA) between Ms. Lewis and the Housing Authority. By addressing legal notices to Mr. Peters and accepting payments from him on behalf of Ms. Lewis, the Housing Authority arguably created a reasonable expectation on the part of Ms. Lewis that the requirements of the notices had been met and that she would not be liable absent further notice.
Neither the Hoopa Valley Tribal Code not the express terms of the MHOA appear to address notice requirements or other procedures following the acceptance of partial payment by the Housing Authority. Compliance with the Federal Rules of Civil Procedure and the California Code of Civil Procedure is not required in the Hoopa Valley Tribal Court, but such rules and cases interpreting such rules may be cited as persuasive authority. HVTC § 2.1.01; Title 3 HVTC Rule 9(b). Moreover, where the Hoopa Valley Tribal Rules of Court do not expressly address a question, the Court may issue any order to accomplish substantial justice. HVTC § 2.7.01; Title 3 HVTC Rule 68.
The California Rules of Civil Procedure do not appear to address notice and other procedural requirements following partial payment of rent upon a notice of default involving residential real estate. However, the California Code of Civil Procedure and California case law do provide that in respect to commercial real estate, if a landlord accepts partial payment of rent after filing a complaint for unlawful detainer, the landlord must provide “actual notice to the tenant that acceptance of the partial rent payment does not constitute a waiver of any rights, including any right the landlord may have to recover possession of the property.” CCCP § 1161.1(c); Woodman Partners v. Sofa U Love et al., 94 Cal. App 4th 766, 769 – 770 (2001).
This Court believes that substantial justice requires that a member of the Hoopa Valley Tribe appearing pro se to defend against a complaint for unlawful detainer of tribal housing should be afforded at least the same procedural safeguards as a tenant of commercial real estate under California law. Thus, when a complaint has been filed and payments are accepted and a homeowner has relied on the good faith of the Housing Authority to accept the payments in lieu of eviction and the Housing Authority fails to provide actual notice that the Housing Authority’s acceptance of partial payments does not constitute a waiver of the Housing Authority’s rights to recover possession, the Housing Authority must serve the tenant with a new notice of eviction and file a new complaint in order to recover possession of the property.
Finally, this Court also has concerns regarding the introduction of evidence concerning the condition of the house and the cultivation of marijuana on the premises at the hearing following the Motion for Reconsideration. Although the Housing Authority sent Defendant a letter on April 9, 2004 informing her she was in violation of the MHOA because the house had allegedly become a health risk and fire hazard, this was not part of the original complaint and that complaint was never amended to include the condition of the house or alleged illegal acts as
7 NICS App. 22, HOOPA VALLEY HOUSING v. LEWIS (May 2005) p. 27
grounds for eviction. Therefore the Housing Authority violated Appellant’s right to a fair trial by introduction of evidence not relevant to claims stated in the original complaint. See HVTC § 2.3.12 regarding the content of a complaint and HVTC § 2.5.01 regarding relevant evidence. While counsel for the Housing Authority stated at oral argument before this Court that the complaint was amended by oral motion at the September 30 hearing, there is no indication in the record of the complaint ever having been amended. If the complaint was amended at the hearing, Defendant was denied the opportunity to prepare a defense against these new allegations. If the complaint was amended upon oral motion at the September 30 hearing, the trial court should have immediately continued the hearing and allowed the Defendant time to prepare her defense against the new legal claims in a trial of such claims. While the final Order of the trial court does not cite the new allegations as support for the court’s decision to reinstate its prior Order, it is impossible for this Court to determine from the record that Defendant was not prejudiced by the introduction of these additional claims and evidence without notice prior to the September 30 hearing.
ORDER
The failure of the Tribal Court to provide Ms. Lewis with adequate notice of a trial in this matter was a denial of Ms. Lewis’ right to due process and improperly shifted the burden of proof and persuasion to Ms. Lewis at the reconsideration hearing. The Order of the trial court is therefore REVERSED. The Housing Authority may initiate a new action for unlawful detainer in the trial court. Prior to filing any new action in the trial court, the Housing Authority must provide Ms. Lewis a new written notice of termination as provided for in Article XII of the MHOA and comply with all other provisions of the MHOA and applicable law regarding termination and notice. Any new summons and complaint must specifically set forth in writing all grounds and claims of the Housing Authority and shall provide Ms. Lewis with adequate time to prepare a defense. If the Housing Authority moves to amend the complaint and the trial court grants such a motion, the defendant shall be given adequate time to prepare a defense to the amended complaint prior to the trial on the merits. It may be that the outcome will be the same, but Ms. Lewis is entitled to due process under the Indian Civil Rights Act of 1968 (25 U.S.C. § 1331 et seq.) and the Hoopa Valley Tribal Code and Constitution.
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.
“A trial is the hearing of the case on its merits, after the parties have had a reasonable time to prepare their cases for submission to the Court.” Title 3, Hoopa Valley Tribal Code Rule 12(c). Throughout the proceedings below, the trial court referred to the trial as a “hearing.” See, e.g., the trial court’s May 5, 2004 Notice of Hearing. The opportunity to be heard by the trial court at a time other than the trial is properly referred to as a “hearing.” For purposes of clarity, this opinion will refer to the original hearing on the merits in this matter as the “trial” and will refer to the hearing following the grant of Defendant’s Motion for Reconsideration as the “hearing.”
While the general rule is that an issue not raised on appeal is waived, this Court believes that Title 3 Hoopa Valley Tribal Code Rule 68 allows the Court to conduct its own inquiry in order to protect the procedural rights of pro se parties.
This figures out to be one payment every pay period during that period of time.
In her brief before the Court of Appeals, Appellant also raised a defense that the Housing Authority failed to complete repairs stemming from a fire. It is not necessary for this Court to address this issue in order to resolve this appeal.