Charles v. Elofson-Gilbertson, (2000)

• Court: Lower Elwha Tribal Court of Appeals
• Decision Date: 20 June 2000
• Docket Number: 04-01-99
• Citation: Charles v. Elofson-Gilbertson (Lower Elwha Tribal Ct. of App. 2000)
• Parties: DENNIS B. CHARLES, APPELLANT, v. NIKI ELOFSON-GILBERTSON, RESPONDENT.

DENNIS B. CHARLES, APPELLANT, v. NIKI ELOFSON-GILBERTSON, RESPONDENT.

No. 04-01-99

Lower Elwha Tribal Court of Appeals

June 20, 2000

SYLLABUS BY THE COURT

Trial court unable to produce tape recording or transcript of proceedings before trial court. Court of Appeals holds that appellate review is not possible absent a complete evidentiary record. Remanded for new hearing on the record.

Before: Christopher P. Williams, Chief Justice; Lisa E Brodoff, Justice; Lorintha Warwick, Justice.

OPINION

This matter came before the Lower Elwha Tribal Court of Appeals on its own motion. This Court has recently confirmed that there is no tape recording of the lower court proceedings in this matter. Title VII, § L provides that appeals "shall be decided on the basis of the trial court record and any written and oral arguments presented by the parties." Section G(l) defines the record as "all papers filed in a case plus the tape recordings and/or transcript made of all court hearings in the case." The absence of a complete lower court record precludes full and fair appellate review of this matter.^[1]

Appellant raises in his notice of appeal both issues of law and of fact. This Court of Appeals may review issues of law de novo however, absent statutory authority to the contrary, factual findings fall exclusively within the trial court's province. Title VII, § L does allow the Appellate Court to consider additional evidence if refusal to do so "would result in a clear injustice." This Court distinguishes, however, between taking additional evidence and holding an entirely new hearing; the latter we decline to do.

In the absence of a complete evidentiary record, this Court cannot fairly review the trial court decision. Therefore, based on the foregoing, it is hereby ordered that this appeal is dismissed. It is further ordered that this matter is remanded to the trial court or a new hearing on the record. In addition to its review of all other relevant evidence and issues, the trial court is instructed to provide fact-finding on the following:

1) the existence and terms of a valid and binding partnership agreement or other contract between Dennis Charles and Ervin Gilbertson, including not limited to:

a) the date of execution of the agreement:

b) any terms regarding profit-sharing;

c) each party's contribution of money, material and labor;

d) apportionment of risk; and

2) the existence and terms of any...