Astorga v. Wing

• Decision Date: 30 August 2005
• Docket Number: No. 1 CA-SA 05-0153.,1 CA-SA 05-0153.
• Citation: 118 P.3d 1103,211 Ariz. 139
• Parties: Maria G. ASTORGA, Dorothy Quiyo, Isabell Jackson, Emery Jackson, Raymond Jackson, Andy Jackson, and Shirley Brown, Petitioners, v. The Honorable Thomas L. WING, Judge of the Superior Court of the State of Arizona, in and for the County of Navajo, Respondent Judge, Royce Greer and Rhonda Greer, husband and wife, d/b/a Greer's Scott Mortuary, Real Parties in Interest.
• Court: Arizona Supreme Court

118 P.3d 1103

211 Ariz. 139

Maria G. ASTORGA, Dorothy Quiyo, Isabell Jackson, Emery Jackson, Raymond Jackson, Andy Jackson, and Shirley Brown, Petitioners, v. The Honorable Thomas L. WING, Judge of the Superior Court of the State of Arizona, in and for the County of Navajo, Respondent Judge Royce Greer and Rhonda Greer, husband and wife, d/b/a Greer's Scott Mortuary, Real Parties in Interest.

No. 1 CA-SA 05-0153.

Court of Appeals of Arizona, Division 1, Department D.

August 30, 2005.

Aspey, Watkins & Diesel, P.L.L.C. by Frederick M. Aspey, Daniel T. Benchoff, Flagstaff, Attorneys for Petitioners.

The Ledbetter Law Firm, P.L.C. by James E. Ledbetter, Brett R. Rigg, Cottonwood, Attorneys for Real Parties in Interest.

OPINION

SNOW, Judge.

¶ 1 Petitioners, who are plaintiffs in the underlying action, bring this special action challenging the superior court's denial of their motion to stay. Petitioners requested the superior court stay proceedings in the state court pending a determination by a Navajo Nation court as to whether it had jurisdiction over a similar action filed by plaintiffs in that court. For the following reasons, we accept jurisdiction, but deny relief.

FACTS AND PROCEDURAL HISTORY

¶ 2 Real Parties in Interest Royce and Rhonda Greer own and operate Greer's Scott Mortuary in Winslow, Arizona. Pursuant to an agreement with the Navajo Nation Division of Social Services the mortuary provided burial and funeral services to indigent members of the Navajo Nation. Royce and Rhonda Greer are residents of Navajo County, Arizona, but are not members of the Navajo Nation.

¶ 3 The Petitioners, are members of the Navajo Nation. Their mother, Helen Jackson, was also a member of the Navajo Nation, but Ms. Jackson was living in Phoenix, Arizona when she passed away on June 29, 2001. Petitioners contacted the mortuary in Winslow to provide burial and funeral services for Ms. Jackson, and they delivered a "tote" bag to the mortuary containing Ms. Jackson's clothing and jewelry. There is a disagreement between the parties as to what, if any, instruction was given to the mortuary regarding the items in the bag and whether Ms. Jackson was to be clothed in those items at the time of her burial. The body was prepared in Winslow.

¶ 4 At the open casket viewing and funeral service, held on the Hopi Reservation, Ms. Jackson had not been dressed in the clothing or the jewelry provided to the mortuary. Instead, the Greers had placed the tote bag containing the items of clothing and jewelry directly in the casket. Ms. Jackson was buried on the Navajo Reservation.

¶ 5 On August 27, 2001, Petitioner Maria Astorga filed a complaint against the mortuary with the Arizona State Board of Funeral Directors and Embalmers alleging that the Greers had failed to dress Ms. Jackson according to instructions and according to Navajo tradition and custom.¹ The complaint further alleged that "the casket appeared soiled, nails showing with the bottom of the casket falling apart." After taking testimony and reviewing the evidence presented, the Board found no funeral law violations.²

¶ 6 On June 19, 2003, Petitioners filed a complaint in the Navajo Nation District Court, Judicial District of Window Rock, alleging wrongful burial and intentional infliction of emotional distress. The complaint also alleged "Claims arising from violations of Navajo Common Law, Custom, Tradition, and/or the Fundamental Laws of the Dine."³

¶ 7 On June 30, 2003, Petitioners filed a parallel complaint in the Superior Court of Navajo County alleging that "the District Court of the Navajo Nation has jurisdiction over this action, and venue is proper in the Judicial District of Window Rock." However, they added "[i]f it is determined [the Navajo Nation] does not have jurisdiction, it is alternatively alleged that the Superior Court of the State of Arizona has jurisdiction and that venue is proper in Navajo County." Together with the complaint, Petitioners filed a Motion for Stay of Proceedings "pending a determination that the Navajo Nation District Court has jurisdiction over the above-named Defendants." Petitioners argued that they were required to file the complaint in the superior court to satisfy the two year statute of limitations on their claims but that a stay of that litigation should be granted pending a determination that the Navajo Nation court has jurisdiction over the Greers.

¶ 8 The superior court denied Petitioners' motion to stay finding that Petitioners "have not shown good cause for a stay order." Petitioners filed a motion for reconsideration that was also denied.

¶ 9 The Greers filed a motion for summary judgment and a motion to dismiss for lack of jurisdiction over parties in the Navajo Nation District Court. Petitioners then filed a cross-motion for summary judgment on the issue of jurisdiction in that same court.

¶ 10 Subsequently, Petitioners requested a stay from the superior court pending a petition for special action challenging the superior court's denial of a stay. They alleged that "where a party has instituted the same action in two courts of different sovereigns, a stay of proceedings is the preferred course of action." Tonnemacher v. Touche Ross & Co., 186 Ariz. 125, 130, 920 P.2d 5, 10 (App.1996) (finding trial court did not have discretion to dismiss claim before it that was also pending simultaneously in federal court, but did have discretion to stay the action). The superior court denied the stay, noting that neither party had provided the court with any records of the Navajo Nation court and thus "there is no basis to stay this action because of any past, present or prospective exercise of jurisdiction by a Navajo Nation court."

¶ 11 Oral argument in the Navajo Nation District Court on the motion to dismiss and the cross-motions for summary judgment was held on March 24, 2004, at which time the Navajo Nation District Court took the matter under advisement. As of the filing of this special action there has been no ruling.

¶ 12 Petitioners filed a special action in this court requesting review of the superior court's refusal to stay the litigation.

DISCUSSION

A. Jurisdiction

¶ 13 Special action jurisdiction is appropriate when there is no equally plain, speedy, and adequate remedy by appeal. Ariz. R.P. Spec. Act. 1(a). The decision to accept jurisdiction is largely discretionary and should be reserved for "extraordinary circumstances." State ex rel. Romley v. Fields, 201 Ariz. 321, 323, ¶ 4, 35 P.3d 82, 84 (App.2001) (citations omitted).

¶ 14 The denial of a motion to stay may be appropriately challenged by special action. See Ariz. Const. art. 6, §§ 5, 9; Ariz. R.P. Spec. Act. 1, 3, 4, 7; Collins v. Truman, 162 Ariz. 367, 369, 783 P.2d 813, 815 (App.1989). Due to the unique issues involved in this case we accept jurisdiction.

B. Merits

¶ 15 Petitioners contend that the superior court erred in failing to grant the stay because, due to principles of comity and respect for Indian courts, "the trial court had no discretion to exercise" and was obliged to grant a stay under the circumstances presented here. We disagree.

¶ 16 Petitioners cite three federal cases, Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987), Crawford v. Genuine Parts, Inc., 947 F.2d 1405 (9th Cir.1991), and Wellman v. Chevron U.S.A., Inc., 815 F.2d 577 (9th Cir.1987), for the proposition that in cases in which there is an allegation that an Indian court has concurrent jurisdiction over a cause of action, principles of comity and respect for Indian courts require that tribal courts first be allowed to determine their own jurisdiction and exhaust it, prior to a matter being brought in either federal or state courts.

¶ 17 Despite Petitioners' argument, however, the principle of exhaustion recognized by federal courts in this context does not similarly operate in Arizona state courts. State v. Zaman, 190 Ariz. 208, 212, 946 P.2d 459, 463 (1997) ("LaPlante describes an exhaustion rule. It does not purport to establish tribal court adjudicatory authority.") (Citations omitted.). Unlike Arizona state courts, federal courts retain the power to review an Indian court's exercise of jurisdiction over non-members. See Nat'l Farmers Union Ins. v. Crow Tribe, 471 U.S. 845, 850, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985). Thus, the relationship between the Navajo courts and the federal courts is (at least in part) a vertical one, governed by the rule of exhaustion. See LaPlante, 480 U.S. at 17, 107 S.Ct. 971; see also Crawford, 947 F.2d at 1407 ("The requirement of exhaustion of tribal remedies is not discretionary; it is mandatory.") (quoting Burlington N. R.R. Co. v. Crow Tribal Council, 940 F.2d 1239, 1245 (9th Cir.1991)).

¶ 18 The principle of exhaustion requires that when the issue of tribal court jurisdiction over non-tribal defendants is raised in a federal court proceeding, a federal court shall "dismiss or abstain from deciding cases in which concurrent jurisdiction in an Indian tribal court was asserted" until jurisdiction has been determined and tribal remedies exhausted. Crawford, 947 F.2d at 1407. The examination of the jurisdictional question

should be conducted in the first instance by the [t]ribal [c]ourt itself ... [to] provide the forum whose jurisdiction is being challenged the first opportunity to evaluate the factual and legal bases for the challenge ... [and to foster] the orderly administration of justice in federal court ... by allowing a full record to be developed in the [t]ribal [c]ourt before either the merits or any question concerning appropriate relief is addressed.

Nat'l Farmers Union Ins., 471 U.S. at 856, 105 S.Ct. 2447. "At a minimum, exhaustion of tribal remedies means that tribal appellate courts must have the opportunity to review the determinations of the lower tribal courts.... Until appellate review is complete... federal courts should not intervene." LaPlante, 480 U.S. at 17, 107...