9 NICS App. 99, SPSITHA v. WILLOUGHBY (April 2010)
IN THE SHOALWATER BAY TRIBAL COURT OF APPEALS
SHOALWATER BAY INDIAN RESERVATION
TOKELAND, WASHINGTON
Southern Puget Sound Inter-Tribal Housing Authority, Plaintiff and Appellee,
v.
Rachel Willoughby, Defendant and Appellant.
No. SHO-CIV-12/09-384 (April 20, 2010)
SYLLABUS*
Trial court issued order affirming the right of a landlord to prohibit dogs from being kept on landlord’s premises and directing the parties to attempt settlement. Court of Appeals holds that order being appealed is not final and appellant failed to satisfy the statutory requirements for an interlocutory appeal by permission. Request for review and immediate relief denied, appeal dismissed, and matter remanded for entry of a final order.
Before: Leona Colegrove, Chief Judge.
OPINION
Colegrove, C.J.:
This matter comes before the Shoalwater Bay Tribal Court of Appeals pursuant to the Notice of Appeal filed by appellant Rachel Willoughby on January 14, 2010.1 Under the Shoalwater Bay Tribal Code, the Court of Appeals may take any action as the merits of the case and the interest of justice may require. SBTC 19.09.010. The Chief Judge decides whether to accept an appeal. SBTC 19.05.030. The code requires the Court of Appeals to give written notice of its decision whether to accept the appeal within 45 days, but does not specify what event triggers the 45-day deadline. SBTC 19.05.030. This Order is entered within 45 days of receipt of the file by the Chief Judge.
Appellant seeks to appeal the January 21, 2010 Judgment and Order of the Shoalwater Bay Tribal Court in which the Tribal Court affirmed the right of appellee Southern Puget Sound Inter-Tribal Housing Authority to prohibit appellant from having dogs on the premises appellant
9 NICS App. 99, SPSITHA v. WILLOUGHBY (April 2010) p. 100
leases from appellee.2 Although appellant’s lease unequivocally prohibits appellant from having any dogs on the premises unless agreed to by appellee, the Notice of Appeal requests immediate relief in the form of allowing appellant to keep certain dogs on the premises.
Based on statements made by the Housing Authority’s representative at the hearing on the merits that the Housing Authority might allow some dogs on the premises, the Order directs appellant to meet with the Housing Authority to discuss which dogs might be allowed. The Order states that the Housing Authority retains the authority to decide how many, if any, dogs may reside on the premises and expressly states that the Housing Authority’s decision shall be accepted in a “final order.” Thus, the Trial Court’s January 21, 2010 Judgment and Order is not a final order as it relates to the exclusion of dogs from the premises. The trial judge also stated at the January 13, 2010 hearing on the merits that she was continuing the matter for thirty (30) days, and then reiterated in her January 21 written order that the “eviction” would be “stayed” for thirty days and reheard on February 10, 2010, further establishing that a final order has yet to be issued in this case.
Because this Court holds that no final order has been issued relating to the keeping of dogs on the premises, the Court will treat the Notice of Appeal as an appeal from an order not yet final. While the Shoalwater Bay Appellate Code does provide for “Appeal from Orders Not Yet Final,” (also described as “appeal by permission”) SBTC 19.03.020, SBTC 19.05.030, an appeal by permission is only to be accepted for review if the trial court “committed an obvious error which (a) would render further proceedings useless; or (b) substantially limits the freedom or [sic] a party to act.” SBTC 19.03.020. This appeal does not meet either criteria. While the trial judge does seem to have committed certain technical errors in procedure and terminology which may have caused some confusion for appellant3, these errors are not the type that would render
9 NICS App. 99, SPSITHA v. WILLOUGHBY (April 2010) p. 101
further proceedings useless or substantially limit the freedom of appellant. Nor do any of these errors transform an order that on its face is clearly not final to an order that is final for purposes of appeal.
An appeal from an order not yet final, or appeal by permission, is also referred to as an interlocutory appeal. A recent decision from the Chehalis Tribal Court of Appeals interpreting nearly identical language in the Chehalis Tribal Code states
The burden on a party seeking an interlocutory appeal ... is a heavy one. First, as a general matter, all appellate courts disapprove of interlocutory and piecemeal appeals for valid policy reasons. The gold standard is to allow one appeal after all the trial court proceedings are at an end and there is a final judgment to review. Judicial economy, fairness to the parties and the court, and numerous other reasonable justifications argue for this standard. See, e.g., Hoopa Valley Tribe v. LeMieux, 6 NICS App. 43, 44 (Hoopa Valley Tribal Court of Appeals, 2001); First Choice Business Machines v. The Tulalip Tribes, 6 NICS App. 1, 2-3 (Tulalip Tribal Court of Appeals, 1999); Hoopa Valley Tribal Council v. Hoopa Valley Tribal Court, 4 NICS App. 181, 182 (Hoopa Valley Tribal Court of Appeals, 1997); Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1 (1980); Catlin v. United States, 324 U.S. 229 (1945).
Confederated Tribes of the Chehalis Indian Reservation v. Hillstrom, No. CHE-CIV-8/06-191 & -192, Order Denying Permission to Appeal, April 5, 2010, available at http://www.nics.ws/Chehalis/chehalis.htm.**
For the reasons stated above, the Court of Appeals holds that there is no final order for review addressing the subject matter of the appeal (dogs on the premises), nor does the Notice of Appeal establish that the criteria for an interlocutory appeal (i.e., appeal by permission) have been met. Therefore, the request for review and immediate relief is denied and the appeal is dismissed. This matter is remanded to the trial court for further proceedings not inconsistent with this Order and entry of a final Judgment and Order on the merits.
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.
The Notice of Appeal cover page is hand dated by the clerk as filed on January 13, 2010, but all other indications are that the Notice of Appeal was actually filed on January 14, 2010.
The trial court issued an oral ruling in open court at the conclusion of the hearing on the merits on January 13, 2010, which is memorialized in the trial court’s January 21 written Judgment and Order. While the Notice of Appeal was clearly filed in response to the trial court’s oral ruling, the trial court’s written Order supersedes the oral ruling. The Court of Appeals will therefore review the Notice of Appeal as if it were an appeal of the January 21 written Order.
The Shoalwater Bay Housing Ordinance provides for rulings of “unlawful detainer”, SBTC 5.1.040, and the issuance of writs of restitution, SBTC 5.1.080. It is only following the issuance of a writ of restitution that a tenant may be “evicted.” SBTC 5.1.090. Thus, the judge’s oral order that “the requested eviction will be granted” is a non sequitor, without any real meaning or effect under the Shoalwater Bay code. (Note, in addition to the Housing ordinance, the Tribe also has an “Eviction Procedures” Ordinance, the substantive terms of which are virtually identical to the Housing Ordinance.) The Court of Appeals also finds no provision in the Shoalwater Bay court rules, which are quite sparse, for a judge to “stay” or “continue” his/her own order, which could prejudice a losing party by obscuring the appeal filing deadline when a final order is at issue. The proper procedure under the Housing Ordinance appears to require the trial court to determine whether the Defendant is guilty of unlawful detainer, grant the Defendant 30 days to cure all breaches, and reserve ruling on a writ of restitution until such time as SPSITHA had actually requested one and Defendant had failed cure the breach(es). (It appears SPSITHA never sought restitution of the premises – the complaint sought only a judgment for the back rent, plus unspecified equitable relief.) The statement in the written Order that “Defendant is advised of her right to appeal from this decision” is certainly confusing in light of the court’s earlier statement that the eviction is stayed and that both the eviction and matter of dogs on the premises will be addressed at a subsequent hearing.
If this order is no longer available at nics.ws, it can be found in this volume of the NICS appellate reporter at 9 NICS App. 94.