--- Am. Tribal Law ----, 2024 WL 6045560 (Colville C.A.), 16 CCAR 27
Colville Tribal Court of Appeals.
 
Andrea D. GEORGE, Appellant
 
v.
 
Edward P. JURSEK, et al Appellee
 
Case No. AP24-002
|
Decided July 15, 2024

Trial Court CV-OC-2021-44022

Before Justice Mark Pouley, Justice Anita Dupris, and Justice David Bonga

Pouley, CJ

 

FACTS

Appellant Andrea George is before this Court alleging that multiple tribal Appellees caused her harm over a long period of years covering numerous interactions. As discussed below, Appellant brought the same or similar claims in Colville Tribal Court previously. The Court will not recount the allegations in this matter as Appellant’s 102-page amended complaint includes 394 paragraphs of allegations, names 13 respondents (all past and present tribal employees), and identifies 12 causes of action. In addition to being voluminous, the allegations are at times confusing. The fact the pleadings cover so many incidents over so much time involving so many parties, in part, is the basis of the Trial Court’s decision to dismiss the complaint and this Court’s decision to AFFIRM that dismissal.

 

DECISION

As the issues before the Court are matters of law, the standard of review is de novo. Naff v CCT, 5 CCAR 50 (1995). Appellant complains that the December 23, 2023, Order of Dismissal, appealed herein, lacks findings and conclusions. While true, this is not a basis to reverse or remand the decision. When the Trial Court dismisses an action as a matter of law it ordinarily does not enter “findings of fact.” If the matter is dismissed as a matter of law, this Court reviews the decision de novo. If this Court agrees with the lower court’s legal decision, on any legal basis, it is not required to decide if the Trial Court’s legal conclusion was in error. Here, the Court finds, on the basis explained below, that the dismissal of the case was correct as a matter of law.

Some of Appellants’ claims are based on alleged misconduct occurring in the Colville Tribal Court, or court filings. Appellant takes issue with how matters were handled, including the qualifications of a pro tern judge, communications with court staff, sitting judges, and others. It is impossible to understand how any of Appellant’s complaints against the individual judges, attorneys, or court personnel, assuming the alleged facts are true, give rise to a cause of action for monetary damages. It is unclear if Appellant’s issues would be a basis for appeal, ethics complaint, or grievance, but there is no legal basis supporting a claim for monetary damages. The DISMISSAL of all claims against the trial court and its personnel is proper as a matter of law and is therefore AFFIRMED.

Appellant was previously a member of the Colville Business Council (CBC) and was removed from that position following an ethics complaint. Appellant brought an action in the Colville Tribal Court in CV-OC-2019-42026 alleging she was wrongfully removed. Her complaint was dismissed and this Court AFFIRMED the dismissal in AP21-016. In pertinent part, we held that “separation of powers prevents our review of the actions of the CBC in their capacity as CBC members.” The holding of the Court is unchanged. Allegations of any wrongful conduct of the CBC, attorneys representing and giving advice to the CBC and other parties that may have been involved with Appellant’s removal and subsequent bar to running for office may not and will not be reviewed by the Colville Tribal Courts. Even if Appellant’s new filing alleges new or additional claims, the legal bar to bringing the claims remains the same. The decision of the Trial Court on this matter is AFFIRMED.

Appellant raises two causes of action, “Breach of Contract” and “Breach of the Implied Duty of Good Faith and Fair Dealing” based on the law of contracts. Appellant does not claim to be a party to the contracts allegedly breached by the Appellees, nor does her description of the contracts imply this may be true. Lack of privy bars a claim for breach of contract as a matter of law and the Restatement of the Law of Contracts, 2d, duly notes that “To state a claim for breach of the implied covenant of good faith and fair dealing, a plaintiff must generally plead: (1) the existence of a contractual relationship between the plaintiff and defendant, (2) plaintiff’s performance (or excuse from performance) of its obligations under the contract; (3) that the defendant unfairly prevented the plaintiff from receiving the benefits it was entitled to under the contract; and (4) injury to the plaintiff as a result of defendant’s conduct.” Even if contracts were breached, Appellant fails to identify any legal claim for monetary damages she suffered as a non-party to the contracts. Additionally, as discussed below, Appellant does not demonstrate how, if such a claim existed, it would survive the Respondents’ sovereign immunity to any action for monetary damages or the statute of limitations.

Appellant also asserts claims for “outrage”, “malicious prosecution”, “defamation”, “negligent/intentional misrepresentation and/or omission”, “negligent/intentional infliction of emotional distress”, “violation of employment records”, and “harassment.” The complaint seeks “monetary damages” for her alleged injury. Appellant brought similar claims in 2017 in cause number CV-OC-2017-40036. Some of the allegations in this pleading appear to repeat allegations brought in the previous litigation. The Trial Court dismissed the 2017 action and this Court affirmed the dismissal in AP21-015. We hold here, as we did in the prior decision, that Appellant’s claims are standard tort claims barred by sovereign immunity. Further, to the extent the claims overlap allegations already brought and dismissed with prejudice by this Court, they are barred from being reasserted. Additionally, to the extent any claims arose more than three years before filing of this action on January 28, 2021, they are barred by CTC § 2-2-3 statute of limitations. We previously affirmed the dismissal of the same or similar claims brought by Appellant and the law has not changed. Dismissal remains appropriate and the Trial Court decision is therefore AFFIRMED.

It is well established that the Colville Confederated Tribes, as a sovereign, may not be sued unless it waives its sovereign immunity. In addition, the Tribes may limit any such waiver to specific claims and remedies. CTEC v. Orr, 5 CCAR 1, at 4 (1998). The Colville Civil Rights Act provides a limited waiver of sovereign immunity, and this Court has reviewed permissible claims and remedies allowed by the waiver numerous times. We do so again in this case.

In her attempt to justify a claim for monetary damages, Appellant’s amended complaint alleges violations of her “civil rights” under CTC§ 1-5. To the extent Appellant’s claims arise from any of the Appellees’ actions relating to her removal from the CBC, the Court already held separation of powers bars our consideration of the claim. To the extent Appellant’s claims arise from improper court action, the Court already held there is no cause of action for challenges to court authority or decisions. To the extent Appellant’s claims allege violations of civil rights described in § 1-5-2, monetary damages may only be considered if the Court determines that injunctive or declaratory relief will not sufficiently address the damages suffered. CTC § 1-5-8. Appellant did not seek injunctive or declaratory relief or allege such relief is insufficient to address her claims. There is extensive precedent in this Court examining the limitations of monetary relief available under CTC§ 1-5-2. It is well-established that Petitioners may not “bootstrap” otherwise barred tort claims by making bare assertions those claims rise to the level of “civil rights violations”. The Court has rejected these efforts in the past, even by this same litigant, and will not change that precedent in this case. Dismissal on the grounds the Appellees are immune from suit seeking monetary damages is AFFIRMED.

Appellant attempted to avoid the bar of sovereign immunity by captioning her complaint against the Appellees “in [their] individual and official capacity.” This Court will not discuss whether suits brought against tribal employees in their individual capacity avoids tribal sovereign immunity. Instead, the Court will examine Appellant’s failure to properly plead the case that any of the Appellees acted in their individual capacity. It was clear to the Trial Court that Appellant’s complaint lacked sufficient clarity and specificity to support claims against the various Appellees in their individual capacities. By order dated October 18, 2021, Appellant was given the opportunity and directed to amend the complaint to specify “which acts of any Respondents that are alleged to have been done in their individual capacity, rather than in their official capacity. If there is no specific allegation of acting in their individual capacity, the Court will deem the allegation to have been done in their official capacity.” Appellant’s second amended complaint filed March 9, 2022, fails to address this deficiency’ so this Court considers all alleged conduct to be performed in the Appellees’ official capacity and claims for monetary damages are barred by sovereign immunity.

As the Petitioner, Appellant is solely responsible for the pleadings filed and must present facts and legal claims supporting the requested relief. In drafting allegations of a complaint to avoid dismissal for failure to state a claim, it is not enough for a pleading party to merely mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, creating the bare structure of an argument, and putting flesh on its bones; rather, the petitioner has an affirmative responsibility to put her best foot forward and present a legal theory that supports her claim. See, Kell v. American Capital, 278 F. Supp. 2d 156 (2003). The Court agrees with the Appellees’ characterization of the pleadings, “The complaint reads like a disconnected narrative of various grievances, anecdotes, and episodes with no central or shared common nucleus of fact or law, other than Petitioner’s presence.” While pleading rules must not create barriers to litigants seeking and obtaining remedies for wrongs they have suffered, all pleadings must be sufficiently clear to notify the respondents of the claims raised, the applicable law, and the defenses they may assert. A scattershot or “shotgun” style of pleading fails to meet this requirement. The amended complaint is as incomprehensible as the complaint challenged in October 2021 that the court directed Appellant to amend. The original complaint and the amended complaint prove that “more” is not necessarily better. The Trial Court’s order of October 18, 2021 instructed Appellant how she might save her pleadings from dismissal. She failed to meet the Trial Court’s directions. Both complaints fail to properly state a claim for which any relief may be granted and this Court refuses to redraft the pleadings to determine if any claims should survive dismissal.

Appellant received substantial due process to air her grievances inside and outside the tribal justice system.1 The fact she is dissatisfied with the resolution of the grievances is not a legal justification for continuing to bring those claims before this Court. In the Colville Courts Appellant previously filed two actions that were considered and dismissed by the Trial Court and the Court of Appeals. The claims before this Court in this action overlap those prior claims, at least in part, both factually and legally. As this Court noted before Desautel v. Dupris, et al, 11 CCAR 6, 11 (2011) “the judicial system’s integrity and ability to ensure just results is negated when a litigant can continually re-file a matter in the hopes of a different result, or in hopes of wearing the other side down.” Dismissal of this case by the trial court as a matter of law was proper and is AFFIRMED.

It is so ORDERED.

All Citations
--- Am. Tribal Law ----, 2024 WL 6045560, 16 CCAR 27

Footnotes
1	Other than adding party names to some of the paragraphs, the amended complaint offers no specific allegations that establish any Respondent acted in their individual capacity.