HOOPA HOUSING AUTH. v. LEE AND LEE

9 NICS App. 25, HOOPA HOUSING AUTH. v. LEE AND LEE (July 2009)

IN THE HOOPA VALLEY TRIBAL COURT OF APPEALS

HOOPA VALLEY INDIAN RESERVATION

HOOPA, CALIFORNIA

Hoopa Valley Housing Authority, Petitioner and Appellee,

Mike Lee Sr. and Alisa Lee, Respondents and Appellants.

No. C-07-028/A-09-001 (July 16, 2009)

SYLLABUS^*

Trial court issued order finding tenants of tribal housing unit liable for back rent and rejecting tenants’ defense of constructive partial eviction due to mold issues in the house. Court of Appeals holds that trial court did not abuse its discretion by refusing to endorse one of tenants’ witnesses as an “expert” or by refusing to admit into evidence a laboratory report offered by tenants. Trial court order affirmed.

Before: Eric Nielsen, Chief Judge; Matthew Fletcher, Appellate Judge; Michelle Demmert, Appellate Judge.

OPINION

Nielsen, C.J.:

Appellants, Mike and Alisa Lee, filed a Notice of Appeal on January 8, 2009. The Lees challenge the Order Following Trial entered by the Hoopa Valley Tribal Court on December 22, 2008 finding Appellants liable for $5,000 in back rent owed to the Hoopa Valley Housing Authority. The Notice of Appeal identifies two valid issues: whether the trial court erred by (1) not admitting a laboratory report and (2) by failing to characterize the testimony of a witness as “expert” testimony.

The Appellants did not submit written briefs or appear for oral argument. The Appellee filed a written brief on May 8, 2009 and appeared and presented oral argument on June 10, 2009.

In the past, this Court has ruled against parties who have failed to participate in good faith in the appellate process based solely on their failure to participate. See, e.g., Colegrove v.

9 NICS App. 25, HOOPA HOUSING AUTH. v. LEE AND LEE (July 2009) p. 26

Hoopa Valley Tribal Council, 8 NICS App. 15 (Hoopa Valley Tribal Ct. App. 2007) (Tribal Council’s Petition for Preemptory Writ granted based on Plaintiff’s failure to respond to motion for summary judgment, failure to file appellate brief, and failure to appear for oral argument); Moon v. Maestas, No. A-03-005, 6 NICS App. 222 (Hoopa Valley Tribal Ct. App. 2004 (appeal dismissed for lack of prosecution based upon Appellant’s failure to appear for oral argument). While this Court retains the authority to impose sanctions against a party that files a frivolous appeal, HVTC 2.6.25, the revised Hoopa Valley Tribal Rules of Appellate Procedure, adopted by the Hoopa Valley Tribal Council on October 2, 2008, provide new guidance to this Court should an appellant fail to participate by filing a brief and appearing for oral argument. “A respondent who fails to file a brief will not be heard at oral argument unless the court grants permission,” HVTC 2.6.11(j). If a party fails to appear for oral argument, “the court shall allow the present party to make its arguments and shall base the decision on the argument and the briefs.” HVTC 2.6.20(f).

The Hoopa Valley Housing Authority filed a complaint for damages and wage garnishment alleging the Lees failed to pay rent under on their lease agreement with the Housing Authority. When the complaint was filed the Lees owed $5,000.00 in back rent. In their answer the Lees did not dispute they failed to pay rent or the amount owing. They alleged they should be excused from paying rent because the house they leased from the Housing Authority had mold issues, which they alleged caused them health problems. The Lees did not provide the Housing Authority any written notice they were withholding rent because of health issues related to the mold problems.

At trial the Lees sought to introduce a report from the Environmental Microbiology Laboratory. The report showed spore counts of some mold samples submitted to it by Curtis Miller of the Hoopa Valley Tribal Environmental Protection Agency. Miller testified he collected the mold samples from the house the Lees leased from the Housing Authority. The Lees also asked the trial court to find Miller is an expert on mold and its health risks.

We review the trial court’s decision to exclude testimony or evidence based on the “abuse of discretion” standard. General Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999).¹

While courts have defined “abuse of discretion” in a number of ways, there is broad agreement that a court abuses its discretion when it acts unreasonably or exercises unsound judgment in the exercise of its discretion. See Hoopa Valley Tribal Court v. Taylor, 7 NICS App. 3, 5 (Hoopa Valley Tribal Ct. App. 2005) (abuse of discretion involves a “clear error of judgment”), In the Membership of Julie Bill Meza, et al., 7 NICS App. 111, 114 (Sauk-Suiattle Tribal Ct. App. 2006)

9 NICS App. 25, HOOPA HOUSING AUTH. v. LEE AND LEE (July 2009) p. 27

(abuse of discretion requires finding that trial court’s actions “were manifestly unreasonable, exercised on untenable grounds, or for untenable reasons”); Ravelo Monegro v. Rosa, 211 F.3d 509, 511 (9th Cir. 2000) (court abuses its discretion “by striking an unreasonable balance of relevant factors”), Calderon v. Thompson, 523 U.S. 538, 539 (1998) (court abuses its discretion “[u]nless it acts to avoid a miscarriage of justice”); Black’s Law Dictionary at 10 (6th Ed. 1990) (abuse of discretion is “synonymous with a failure to exercise a sound, reasonable, and legal discretion”).

In the Matter of E.M., 9 NICS App. 1, 5 (Hoopa Valley Tribal Ct. App. 2009).

The trial court excluded the laboratory report because “the testing method … used was not researched and it was uncertain if the technique used for testing had been subject to peer review or publication.” (Order Following Trial at 3.) The court also ruled it would not endorse Miller as an expert because the Lees failed to show Miller qualified as an expert on mold and the health risks, if any, of the types of mold found in the house. Miller was allowed to testify – the trial court simply declined to admit his testimony as “expert” testimony.

Based on our review of the record and the arguments presented by the Housing Authority, we conclude the Trial court’s rulings excluding the laboratory report and refusing to characterize Miller’s testimony as “expert” testimony were reasonable. There was no evidence the test used by the laboratory was based on relevant scientific methods. There was no evidence Miller had any specialized training or knowledge on the subject matter of mold or the potential health risk of exposure to mold. The trial court correctly found the Lees failed to lay a proper foundation for the admission of either the laboratory report or Miller’s testimony as an expert witness. We therefore hold that the trial court did not abuse its discretion.

Based on the foregoing, the Hoopa Valley Tribal Court’s Order Following Trial in this matter is affirmed.

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.

Federal rules of procedure and evidence and federal case law “may be cited to as persuasive argument” in the Hoopa Valley Tribal Courts. HVTC 2.1.01.