You Need Some Other Court to Abstain to.

Findleton v. Coyote Valley Band of Pomo Indians, No. A145444 (D1d2 as modified, Sept. 26, 2018).

In a prior appeal in this case, the First District held that an Indian tribe had waived its sovereign immunity such that it could be compelled to arbitrate. A second appeal reversed a grant of attorneys’ fees to the Tribe in connection with the denied motion to compel, because, in light of the first appeal, the Tribe was no longer the prevailing party. On remand, the case was compelled to arbitration and fees awarded to the Plaintiff.

In this third appeal, the Tribe raises issues about the scope of the attorney fee clause in the pertinent contract. But it hadn’t raised that issue in the trial court. And although the Court has discretion to reach an argument that’s raised for the first time on appeal, it generally does so only when the issue presents a pure question of law. Here, the questions about the fee clause implicate factual questions. And while the Tribe claims the facts are “clear,” its failure to raise the question in the trial court prevented plaintiff from developing any record otherwise, such as by admitting parol evidence. 

The Tribe also objects to the fee award on various sovereign immunity grounds. But it lost those points in the first appeal, and the Court isn’t going to revisit it.

The Tribe further contends that the trial court should have abstained jurisdiction as a matter of comity to permit a tribal court to take a first whack at whether it had jurisdiction over the matter. Federal law recognizes an abstention doctrine on that ground. Essentially, principles of comity require deference to the jurisdiction of tribal courts such that the parties should have to exhaust their tribal court remedies before bringing a federal lawsuit. 

It’s not clear at all that the rule applies to state courts, although it does apply to federal diversity cases. But the Court doesn’t need to resolve that question because no functioning tribal court existed at the time Plaintiff invoked the superior court’s jurisdiction to compel arbitration. A state court can’t owe any comity to or abstain in favor of a nonexistent tribunal.  

Finally, the Tribe says the trial court erred by failing to ascertain its jurisdiction prior to issuing the fee awards. But that’s not substantiated by the record.

Affirmed.