15 CCAR 56, 8 CTCR 16
John WHITELAW, Appellant,
v.
Ramona CAMPOBASSO and Melissa CAMPOBASSO, Appellees.
No. AP22-005 IA
Colville Confederated Tribes Court of Appeals
June 23, 2022
Dupris, C.J.
PROCEDURAL HISTORY
On August 27, 2021 Ramona and Melissa Campobasso, Appellees herein, filed a Civil Complaint for Unlawful Detainer, Writ of Restitution, and Waste against John Whitelaw, Appellant herein. On October 12, the Court granted Appellee's Motion and Affidavit for Substituted Service in chambers, without a hearing on record. The Court also set an eviction hearing for December 7, 2021.
Appellees stated on record that they had documentary proof of substitute service by publication in the Star newspaper and by posting the Notice and Summons in two different places on the Reservation. Appellees did not file the written proof with the Court, so we could not verify such proof of service from reviewing the record.
On November 15, 2021 Appellant filed an Answer and Affirmative Defense to the Civil Complaint, and Appellant's Spokesperson, Mark Carroll, filed a Notice of Appearance on behalf of Appellant.
On December 7, 2021 Court entered Orders enforcing Unlawful Detainer and Writ of Restitution for Appellees and against Appellant. Neither Appellant nor his Spokesperson appeared at the December 7, 2021 hearing. The Court order states both parties had been properly served Notice of the hearing.
On October 28, 2021 a Court Clerk served Appellant a copy of the Order of Substituted Service dated October 12, 2021 which directed Appellant to file his answer with 20-30 days, or a default judgment may be entered against him. The same Order of Substituted Service set an eviction hearing for December 7, 2021.
Appellant complied with the Order of Substituted Service by filing an Answer and Affirmative Defenses on November 15, 2021, along with a Notice of Appearance by his Spokesperson, Mark Carroll. Mr. Carroll was not served Notice of the December 7, 2021 hearing. The record does not reflect any new Notice of Hearing for the December 7, 2021 hearing after Appellant and his Spokesperson filed the Answer and Affirmative Defenses.
In the December 7, 2021 hearing an Order to Enforce Unlawful Detainer and Writ of Restitution was entered on record and signed on February 4, 2022. The Court found that both parties had been properly served, and Appellant and his Spokesperson failed to appear. The record does not reflect proper service of the December 7, 2021 hearing on either Appellant or his Spokesperson .
On March 2, 2022 Appellant filed a Motion to Reconsider the December 7th Order, and asked for a trial on the merits. This Motion to Reconsider was denied by the Court by Order dated April 22, 2022. The Judge held, in its Order denying Reconsideration, that Appellant's Spokesperson filed a Notice of Appearance on November 15, 2021, and Appellant was served notice of the hearing by a Court Clerk on October 28, 2021.
The Court further found, in its Order of April 22, 2022:
1. Appellant and his Spokesperson failed to appear for the December 7, 2021 hearing, which was the only chance to give their version of the dispute.
2. Appellant was given notice of the December 7, 2021 hearing on eviction when the Court Clerk personally served him the Order for Substitute Service, which had the Court date in it.
3. Spokesperson Carroll filed an Notice of Appearance on November 15, 2021, and it was Appellant's responsibility to make sure his Spokesperson had all the relevant information, such as, among other things, the hearing date of December 7, 2021.
4. The Court did serve all the parties with the December 7, 2021 hearing. Based on the above, the Court denied the Motion.
Appellant filed an Interlocutory Appeal on May 13, 2022, to which Appellee has not filed a response or objection.
Based on the foregoing, we granted the Interlocutory Appeal, and at the Initial Hearing we found errors of law sufficient to reverse and remand.
ISSUES
1. Did the Court err by granting a default hearing after Appellant's Spokesperson filed an Answer and Affirmative Defenses prior to the December 7, 2021 hearing?
2. Did the Court err by not notifying Appellant's Spokesperson of the December 7, 2021 hearing?
3. Did the Court err by not issuing a separate Notice of Hearing for December 7, 2021 after Appellant filed an Answer and Affirmative Defenses?
STANDARD OF REVIEW
The three identified issues are issues of law. We review de novo. Naff v. CCT, 2 CCAR 50 (1995).
DISCUSSION
Appellant raised three grounds for an Interlocutory Appeal:
1. The Trial Court has committed obvious error which would render further proceedings useless;
2. The issues presented involve controlling issues of law as to which there is substantial grounds for difference of opinion and that an intermediate appeal from the decision may materially advance the termination of the litigation; and
3. The Trial Court has departed from the accepted and usual course of judicial proceedings.
Based on our discussion below, We find the Court did commit reversible error on all three grounds and we will reverse and remand for a trial.
1. Did the Court err by granting a default hearing after Appellant's Spokesperson filed an Answer and Affirmative Defenses prior to the December 7, 2021 hearing?
The Order of Substituted Service of October 12, 2021 had a Court date set of December 7, 2021; it also had language that told the Respondent/Appellant if he did not respond in a timely fashion that a default judgment could be entered against him. Appellant did file a timely response, and retained a Spokesperson to represent him in the matter.
The record does not reflect why the Court would set an Eviction Hearing in an Order for Substituted Service. This is not standard practice. There is nothing in the record that shows Appellee, as Petitioner, asked the Court for a hearing date by separate Motion and Affidavit. The Court did not issue a separate Notice of Hearing for the December 7, 2021 eviction hearing that comports with due process. The Court went ahead with a default hearing even though Appellant and his Spokesperson notified the Court they were participating in the case.
We have held:
"Parties must have reasonable notice prior to any substantive hearing to allow the parties time to prepare their respective cases [cites omitted]... When a person is not given adequate notice of what is to be considered in a hearing, all the other procedural rights are impacted. He does not have adequate time to prepare for the hearing, and to submit evidence on his own behalf.... the parties have a right to present their evidence in a meaningful manner. The judge is the gatekeeper of due process. It is the Court's responsibility to ensure adequate notice is provided to every litigant, and to allow everyone who appears in Court to have his say, in his own way." Lezard v. Conto, 10 CCAR 23 (2009).
To further compound the error, the Court, in it's Order Denying Reconsideration, April 22, 2022, found it was Appellant's responsibility to notify his Spokesperson of the December 7, 2021 hearing set out in an Order for Substituted Service. This is not standard practice; once a Spokesperson has filed a Notice of Appearance, it is required that the Court include him or her in all Notices. Default judgments are to be considered only if, after adequate notice, the responding party does not respond. This is not the case here. The Trial Court committed reversible error, we so hold.
2. The issues presented involve controlling issues of law as to which there is substantial grounds for difference of opinion and that an intermediate appeal from the decision may materially advance the termination of the litigation.
The crux of the Interlocutory Appeal is that Appellant was not afforded adequate procedural due process. He was denied his opportunity to present his evidence before a judgment was rendered against him. The Court, in its April 22, 2022 Order, finds that Appellant was given notice of the December 7, 2021 eviction hearing, and it was his responsibility to share the information with his Spokesperson; the Court found that "This was the one and only opportunity that they had to present their version of the dispute in question." Order Denying Motion for Reconsideration at page 1.
As we stated under Issue 1, supra, the Notice the Court relied on was inadequate. Appellant has stated sufficient evidence and law to support this ground for an Interlocutory Appeal, and we find the Court made a reversible error. We so hold.
3. The Trial Court has departed from the accepted and usual course of judicial proceedings.
The first departure from the usual course of judicial proceedings was when the Court set an eviction hearing on a Notice and Summons by publication. The Notice and Summons was answered by Appellant, and that precluded going forward for a default hearing without sufficient notice to Appellant. See, for example, Washington Court Rule 55. Appellant's spokesperson was also not served notice. Our Court does not have a separate court rule for Default Judgments, so we must look elsewhere for guidance. CTC, section 2-2-102, Applicable Law.
The second departure is when the Court held it did not have to notify Appellant's Spokesperson of the December 7, 2021 hearing, and that it was his client's responsibility to do so. This premise is not supported by any law, statutory or case law, that we are aware of. This is in violation of basic tenets of procedural due process. We so hold.
Based on the foregoing, we hold that the Court committed reversible errors in not providing Appellant adequate due process, and that he has the right to present his evidence in this matter before a final judgment can be entered.
It is so ORDERED, and this matter is REVERSED and REMANDED to the Trial Court for actions consistent with this Order.