Rules of Civil Appellate Procedure Header

Rules of Civil Appellate Procedure

Content Block 2

Navajo Rules of Civil Appellate Procedure Cite as N.R.C.A.P.

These rules were adopted by the Navajo Nation Supreme Court on December 29, 1986 and were approved by the Judiciary Committee of the Navajo Nation Council on January 9, 1986. They became effective on March 1, 1987.

These are unannotated rules with very brief commentary. For the annotated rules, see NAVAJO NATION PRACTICE BOOK, Fourth Edition, T&B Publishing.

These rules shall be known as the Navajo Rules of Civil Appellate Procedure and they shall be cited as N.R.C.A.P. These rules shall govern the procedure in civil appeals to the Navajo Nation Supreme Court. These rules shall become effective on March 1, 1987.

2(A)

“Decision,” as used in these rules, shall mean a written disposition of an appeal, including a disposition by opinion, memorandum decision, or order, pursuant to Rule 22.

2(B)

“Judgment,” as used in these rules, shall mean any appealable order, whether denominated an order, a judgment, a decree, or otherwise

2(C)

“Mandate,” as used in these rules, shall mean an order of the Supreme Court to the district court or administrative agency directing certain action to be taken or disposition to be made respecting a case appealed.

2(D)

“Transcript,” as used in these rules, shall mean a reporter’s transcript, a transcription of an electronic recording, a narrative statement of evidence pursuant to Rule 9(c), or an agreed statement pursuant to Rule 9(d).

2(E)

“Upon motion,” as used in these rules, shall mean a motion of a party to the appeal, in accordance with Rule 6(a), and on order of the district court or Supreme Court as the case may be. It shall also include an order of the district court or Supreme Court upon its own motion.

2(F)

“Upon stipulation,” as used in these rules, shall mean a stipulation of the parties to the appeal, and an order of the district court or Supreme Court as the case may be.

Except as otherwise provided in Rule 5(b), the Supreme Court may upon motion for good cause shown suspend the requirements or provisions of any of these rules in a particular case, and may order proceedings in accordance within its discretion. These rules shall be liberally construed in the furtherance of justice.

4(A)

Filings; Form of Papers; Number of Copies. All papers required or permitted to be filed in the Supreme Court shall be filed with the Clerk of the Supreme Court. All papers filed shall be typewritten and double-spaced. Quotations may be single-spaced. The paper must be white, opaque, unglazed, and 8.5 by 11 inches. The papers shall contain a caption setting forth the title of the Navajo Nation Supreme Court, the title of the case, the case number and a brief descriptive title. All filings, except those provided by Rule 9, shall consist of an original and four (4) copies. Filings may be accomplished by certified mail addressed to the Clerk, but filing shall not be timely unless the papers are received and stamped by he Clerk within the time fixed for filing.

4(B)

Service of All Papers Required; Notice by The Court; Manner of Service. Copies of all papers filed by any party shall be served by a party or person acting for him, who is over the age of 18, on all other parties to the appeal at or before the time of filing. This rule shall not apply to the transcript filed pursuant to Rule 9. Service may be personal or by mail. Personal service includes delivery of the copy to counsel, or a clerk, or other responsible person over the age of 18 at the office of counsel. Service by mail is complete on mailing. Service of copies of notices and papers that the Clerk of the Supreme Court must serve on parties to the appeal shall also be made in accordance with the foregoing.

4(C)

Proof of Service. Papers presented for filing shall contain an acknowledgement of service by the person served, or proof of service in the form of a statement of the date and manner of service and of the name of the person served, signed by the person to made service. Proof of service may appeal on or be annexed to the papers filed.

4(D)

Service on Attorney or Guardian Ad Litem; Substitution; Notice. Attorneys and guardians ad litem in the district court or at the administrative hearing will be deemed attorneys and guardians ad litem of the same parties in the Supreme Court until a substitution is made or there has been an appropriate withdrawal. Service of notices, briefs, and all papers shall be made, when appropriate under these rules, on such attorneys or guardians ad litem until a substitution is made and notice thereof given to all other parties.

RULE 1. Title and Scope of Rules

 

These rules shall be known as the Navajo Rules of Civil Appellate Procedure and they shall be cited as N.R.C.A.P. These rules shall govern the procedure in civil appeals to the Navajo Nation Supreme Court. These rules shall become effective on March 1, 1987.

RULE 2. Definitions

2(A)

“Decision,” as used in these rules, shall mean a written disposition of an appeal, including a disposition by opinion, memorandum decision, or order, pursuant to Rule 22.

2(B)

“Judgment,” as used in these rules, shall mean any appealable order, whether denominated an order, a judgment, a decree, or otherwise

2(C)

“Mandate,” as used in these rules, shall mean an order of the Supreme Court to the district court or administrative agency directing certain action to be taken or disposition to be made respecting a case appealed.

2(D)

“Transcript,” as used in these rules, shall mean a reporter’s transcript, a transcription of an electronic recording, a narrative statement of evidence pursuant to Rule 9(c), or an agreed statement pursuant to Rule 9(d).

2(E)

“Upon motion,” as used in these rules, shall mean a motion of a party to the appeal, in accordance with Rule 6(a), and on order of the district court or Supreme Court as the case may be. It shall also include an order of the district court or Supreme Court upon its own motion.

2(F)

“Upon stipulation,” as used in these rules, shall mean a stipulation of the parties to the appeal, and an order of the district court or Supreme Court as the case may be.

RULE 3. Suspension of Rules.

 

Except as otherwise provided in Rule 5(b), the Supreme Court may upon motion for good cause shown suspend the requirements or provisions of any of these rules in a particular case, and may order proceedings in accordance within its discretion. These rules shall be liberally construed in the furtherance of justice.

RULE 4. Filing and Service.

4(A)

Filings; Form of Papers; Number of Copies. All papers required or permitted to be filed in the Supreme Court shall be filed with the Clerk of the Supreme Court. All papers filed shall be typewritten and double-spaced. Quotations may be single-spaced. The paper must be white, opaque, unglazed, and 8.5 by 11 inches. The papers shall contain a caption setting forth the title of the Navajo Nation Supreme Court, the title of the case, the case number and a brief descriptive title. All filings, except those provided by Rule 9, shall consist of an original and four (4) copies. Filings may be accomplished by certified mail addressed to the Clerk, but filing shall not be timely unless the papers are received and stamped by he Clerk within the time fixed for filing.

4(B)

Service of All Papers Required; Notice by The Court; Manner of Service. Copies of all papers filed by any party shall be served by a party or person acting for him, who is over the age of 18, on all other parties to the appeal at or before the time of filing. This rule shall not apply to the transcript filed pursuant to Rule 9. Service may be personal or by mail. Personal service includes delivery of the copy to counsel, or a clerk, or other responsible person over the age of 18 at the office of counsel. Service by mail is complete on mailing. Service of copies of notices and papers that the Clerk of the Supreme Court must serve on parties to the appeal shall also be made in accordance with the foregoing.

4(C)

Proof of Service. Papers presented for filing shall contain an acknowledgement of service by the person served, or proof of service in the form of a statement of the date and manner of service and of the name of the person served, signed by the person to made service. Proof of service may appeal on or be annexed to the papers filed.

4(D)

Service on Attorney or Guardian Ad Litem; Substitution; Notice. Attorneys and guardians ad litem in the district court or at the administrative hearing will be deemed attorneys and guardians ad litem of the same parties in the Supreme Court until a substitution is made or there has been an appropriate withdrawal. Service of notices, briefs, and all papers shall be made, when appropriate under these rules, on such attorneys or guardians ad litem until a substitution is made and notice thereof given to all other parties.

RULE 5. Computation; Shortening or Extension of Time.

5(A)

Computation of Time. In computing any limits required by these rules, or by order of the Supreme Court, or by any applicable law, the day of the act, event, or judgment shall not be included. The last day of the period so computed is to be included unless it is a Saturday, Sunday, or court holiday, in which case the period shall extend to the end of the next business day which is not a Saturday, Sunday, or court holiday.

5(B)

Shortening or Extension of Time. The time for doing any of the acts provided for in these rules, or by order of the Supreme Court, or by any applicable statute, may be shortened or extended upon stipulation and approval by the Supreme Court, or upon written motion for good cause shown, but the Supreme Court may not shorten or extend the time for filing a Notice of Appeal.

5(C)

Additional Time After Service by Mail. Whenever a party is required or permitted to do an act within a prescribed period after the filing of a paper and the paper is served on the party by mail, seven (7) days shall be added to the prescribed period.

Note: When the N.R.C.A.P. Rule 9(a)(2) time limit passes without a transcript having been filed and without an extension request made to the district court, N.R.C.A.P. Rule 5(b) is available to the appellant to ask this Court, upon a showing of good cause, to shorten or extend the time for filing the record; However, "good cause" does not mean addressing a matter that has previously been, or should have been, brought to the attention of the lower court. Rule 5(b) is not to be used to skirt the Rule 9(a)(2) authority of the district court. NHA v. Dennison, No. SC-CV-04-12 (Apr. 20, 2012).

6(A)

 (1)

Content of Motions; Response; Reply. An application for an order or other relief shall be made by filing a written motion. The motion shall contain or be accompanied by any matter required by a specific provision of these rules governing such a motion, shall specifically state the grounds on which it is based, and shall set forth the order or relief sought. Any party may file a response to a motion within 20 days after service of the motion. The moving party may file a reply memorandum within 10 days after service of the response. The reply memorandum shall be confined strictly to rebuttal of points argued in the response to the motion.

6(A)

(2)

 Motion Papers Requiring Supporting Affidavits or Other Evidence. Motion papers that rely on facts not apparent in the record, and of which the Supreme Court cannot take judicial notice, shall be supported by affidavit or other satisfactory evidence.

6(B)

 Motions for Procedural Orders. Notwithstanding the preceding subdivisions, motions for procedural orders may be acted upon at any time, without awaiting a response thereto. Any such motion must contain an affidavit containing the following:

 

(1)

The reason why the motion constitutes a motion for procedural order and can be acted upon without a response; and

 

(2)

A description of all efforts to secure a stipulation from adverse counsel and the reasons why the stipulation has no been obtained.

7(A)

Filing the Notice of Appeal. All appeals shall originate by filing a written Notice of Appeal with the Clerk of the Supreme Court. A certified copy of the judgment, order, or administrative decision being appealed, signed by the judge or hearing officer and dated, must be attached to the notice of Appeal, and the filing fee must be paid at the time of filing.

7(B)

Filing Fee. The Clerk shall not accept any appeal for filing and no appeal shall be considered filed until the filing fee has been paid and a copy of the final judgment has been attached. Filing fees shall be established by the Supreme Court and become effective upon thirty (30) days notice to the public.

Note: In Thomas-Pittman v. Navajo Nation, No. SC-CV-56-11 (Nav. Sup. Ct. Dec. 14, 2011) the Supreme Court emphasized that the filing fee is jurisdictional and may be waived only where required under the Navajo Nation Bill of Rights

7(C)

Content of the Notice of Appeal. The Notice of Appeal shall state the title of the Navajo Nation Supreme Court and of the action; shall specify the party or parties taking the appeal; shall designate the judgment or part thereof appealed from; shall name the court or administrative agency from which the appeal is taken; and shall be signed by the attorney, or if the party is not represented by an attorney, then by the party taking the appeal. (The Notice of Appeal shall conform to Form 1 below).
 

Form 1. Notice of Appeal.
If the appeal is from the entire judgment, the following form is recommended:
IN THE SUPREME COURT OF THE NAVAJO NATION
Appellant or Petitioner,          No.:_________
vs.
Appellee or Respondent.
Notice is hereby given that the above named ____________ appeals to the Supreme Court of the Navajo Nation from the judgment entered in this action by the (name of Court or Agency) on the ____ day of _______, (year).

 

_______________________
Name of Attorney (or Party taking Appeal if not represented by Attorney

If the appeal is from part of the judgment, the following form is recommended:
IN THE SUPREME COURT OF THE NAVAJO NATION
Appellant or Petitioner,          No.:_________
vs.
Appellee or Respondent.
Notice is hereby given that the above named ____________ appeals to the Supreme Court of the Navajo Nation from the following part of the judgment entered by the (name of Court or Agency) on the ____ day of _______, (year):
[Specify the part of the Judgment appealed from here.]

 

_______________________
Name of Attorney (or Party taking Appeal if not represented by Attorney

Note: See Rule 24 of these Rules for separate caption requirements in appeals from Navajo Nation Children's Code judgments of the Navajo Nation Family Court.

7(D)

Service of the Notice of Appeal. The Notice of Appeal and any motions or other papers filed in support of an appeal shall be served in accordance with Rule 4(b). Service shall be sufficient notwithstanding the death of a party or his counsel.

7(E)

Filing of Notice of Appeal with the District Court or Administrative Agency. The appellate shall file a copy of the Notice of Appeal with the district court or administrative agency and shall have this copy dated by the district court clerk or the administrative agency. The district court or administrative agency shall be notified of the appeal in the above manner not later than the same day the Notice of Appeal is filed with the Supreme Court

8(A) Time; Personal Representatives; Cross-Appeal. The Notice of Appeal required by Rule 7 shall be filed not later than thirty (30) days after the entry of the judgment from which the appeal is taken, unless a different time is provided by law. If a party dies during the time he is entitled to take an appeal, the appeal may be taken by his personal representative within 90 days after the death of the party. A notice of cross-appeal may be filed by an opposing party within 20 days from the date the Notice of Appeal is filed.

Note: See Rule 23 of these Rules for the 5-day time limit for fulfilling bond requirement in appeals from forcible entry and detainer proceedings.

8(B)

Extension of Appeal Time. When any of the following motions are timely filed, the time for appeal is extended, and the times set forth in Rule 8(a) shall be computed from the entry of any of the following orders:
  (1) Granting or denying a motion for judgment notwithstanding the verdict.
  (2) Granting or denying a motion to amend or make additional findings of fact whether or not granting the motion would alter the judgment.
  (3) Granting or denying a motion to alter or amend the judgment.
  (4) Denying a motion for new trial. If more than one of the foregoing motions is timely filed, the expiration of the time for appeal is to be computed from the date of the entry of the order which disposes of the last remaining motion. When a motion to amend or make additional findings of fact is granted, the time does not begin to run until the amendment or addition has been accomplished by court order. The same applies also to the granting of a motion to alter or amend the judgment. For the purposes of this subdivision, entry of an order occurs when the judge or hearing officer signs and dates the order.

9(A)

Composition of Record on Appeal; Transmission of Record.
 

(1)

The papers making up the record on appeal to the Supreme Court shall be the original papers, exhibits and other objects filed with the clerk of the district court or administrative agency, a reporter’s transcript, transcription of an electronic recording or narrative or agreed statement, and copies of all entries. The clerk of the district court or administrative agency shall make and retain copies of such original papers, exhibits, and objects as are capable of being copied before transmittal to the Supreme Court.
 

(2)

The clerk of the district court shall number the items comprising the record, and shall transmit the record to the Supreme Court, together with an appropriate index listing the contents of the record and the number thereof, within 30 days from the date of filing the Notice of Appeal. The clerk of the district court shall also serve a copy of the index upon all parties to the appeal. If an enlargement of time is desired, the appellant may obtain an order from the district court extending the time for transmitting the record to not more than 45 days from the date of filing the appeal. The order for extension must be made before the expiration of the period for transmittal as originally prescribed or as extended by previous order. If a transcript cannot be obtained within 45 days from the date of the first Notice of Appeal, application by the appealing party shall be made to the Supreme Court for relief. **
 

(3)

The parties to an appeal may agree by written stipulation that any portion of the record on appeal need not be transmitted to the Supreme Court. Either party may include copies of any of the papers making up the record on appeal as an appendix to their briefs.

** Notes:
The burden is upon the appellant to ensure transmittal of the complete record, or to seek an enlargement of time to ensure transmittal if the complete record cannot be filed within 30 days. See Legislative Branch/Community Service Program v. Hatathlie, 7 Nav. R. 259, 260 (Nav. Sup. Ct. 1997).

In Wauneka v. Navajo Department of Law Enforcement No. SC-CV-27-09 (Nav. Sup. Ct. Aug 12, 2009) the Court clarified Rule 9(a)(2) stating that parties have the affirmative duty to notify the Supreme Court and the other parties in a case that it has filed for an extension in the lower tribunal and whether an extension has been granted.

In Thompson v. Yazzie No. SC-CV-21-06 (Nav. Sup. Ct. July 14, 2006) the Supreme Court had previously denied Appellant's motion for enlargement of time to file the transcript that was filed directly to that Court, indicating that Rule 9(a)(2) required an appellant to first file an enlargement request with the district court. In the opinion, the Court held that the failure of the lower tribunal to respond to a transcript extension request will be treated as an automatic grant of a 15 day extension. However, a prudent appellant should file a notice with the Supreme Court that an extension motion had been filed, no action had been taken by the district court, and therefore the appellant will file the transcript within the 15 day extension period.

The district court's authority pursuant to Rule 9(a)(2) includes discretion to deny a motion for enlargement of time to transmit the record upon a specific finding that no good cause exists justifying the extension. NHA v. Dennison, No. SC-CV-04-12 (Apr. 20, 2012).

Relief under NRCAP Rule 5(b): When the N.R.C.A.P. Rule 9(a)(2) time limit passes without a transcript having been filed and without an extension request made to the district court, N.R.C.A.P. Rule 5(b) is available to the appellant to ask this Court, upon a showing of good cause, to shorten or extend the time for filing the record; However, "good cause" does not mean addressing a matter that has previously been, or should have been, brought to the attention of the lower court. Rule 5(b) is not to be used to skirt the Rule 9(a)(2) authority of the district court. NHA v. Dennison, No. SC-CV-04-12 (Apr. 20, 2012).

9(B)

The Transcript of Proceedings; Duty of Appellant to Order; Notice to Appellee if Partial Transcript is Ordered.
  (1) No later than 10 days after filing the Notice of Appeal, the appellant shall order from the reporter or transcriber an original and one copy of a transcript, if any, of such parts of the proceedings necessary for inclusion in the record. If the appellant intends to argue on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion.
  (2) Unless the entire transcript is to be included, the appellant shall, within the time provided in 9(b)(1), file a description of the parts of the transcript which he intends to include in the record and a concise statement of the issues he intends to present on the appeal, a copy of which shall be served by appellant on appellee. If the appellee deems a transcript of other parts of the proceedings to be necessary, he shall, within 10 days after the service of the statement of the appellant, file a designation of additional parts to be included. If the appellant refuses to order such parts, he shall, within 5 days, notify the appellee in writing of such refusal. The appellee may either order the parts or apply to the Supreme Court for an order requiring the appellant to do so. At any time prior to submission to the Supreme Court for decision, a party may apply to the Supreme Court to include any additional part of the transcript.

Note on Rule 9(b)(1) and (2): In Tso v. Navajo Housing Authority, No. SC-CV-20-06, slip op. at 2 (Nav. Sup. Ct. August 16, 2006) the Supreme Court held that Appellants have an affirmative duty to inform the Court and other parties that a transcript is not necessary to the appeal and will not be filed. Id. at 3. The Court subsequently stated that absent a notice of non-filing of a transcript and absent an extension to file the transcript, the Court will dismiss the appeal. Oliver v. Apache, No. SC-CV-19-10 slip op. at 1 (Nav. Sup. Ct. June 17, 2010) citing Tso.
 

(3)

At the time of ordering, the party ordering shall make satisfactory arrangements with the reporter or transcriber for payment of the cost of the transcript and file a notice in the Supreme Court to that effect. Failure or delay in making satisfactory arrangements with the court reporter or transcriber shall be cause for such sanctions as the Supreme Court deems proper pursuant to Rule 29.
 

(4)

The appellant shall file an original and one copy of the transcript with the clerk of the district court or administrative agency, within the period of time for transmitting the record stated in Rule 9(a). Notice of the filing of the transcript shall be served by the appellant upon the other parties to the appeal. If there is one appellee, the clerk of the district court shall mail the copy of the transcript to him for his use. If there is more than one appellee, the copy of the transcript shall remain with the clerk of the district court and shall be available for the use of all appellees, and shall be released to one of the appellees only upon stipulation of all the appellees, or upon order of the district court.
 

(5)

The transcript shall not contain the Voir Dire of jurors, or any other matters preceding the impaneling of a jury, or the opening statements of counsel to the jury, or any part thereof, unless specifically requested by one of the parties to be contained in the transcript.
 

(6)

The parties shall not include in the transcript any matter not essential to the decision of questions presented by the appeal. For any infraction of this rule, the Supreme Court may impose sanctions pursuant to Rule 29.

9(C)

Narrative Statement of the Evidence or Proceedings When the Transcript is Unavailable. If a transcript is unavailable, the appellant may prepare and file in the district court or administrative agency a sworn narrative statement of the evidence or proceedings from the best available means, including appellant’s recollection. The sworn statement shall be filed within 30 days after filing the Notice of Appeal.

The appellee may file objections or proposed amendments thereto within 10 days after service. If the appellant does not intend to file a sworn statement he shall notify the appellee and the appellee may prepare and file a sworn statement with the time remaining, and the appellant may file objections or proposed amendments within 10 days after service.

9(D)

Agreed Statements in Lieu of Transcript. In lieu of the transcript, the parties may stipulate to and file an agreed statement in the district court or administrative agency setting forth such evidence or proceedings as are essential to a decision of the issues presented by the appeal. The agreed statement shall include a statement of the issues the appellant is presenting on appeal and shall be filed within 30 days after filing the Notice of Appeal.

9(E)

Correction or Modification of the Record. If a dispute arises as to whether the record discloses what actually occurred in the district court or in the administrative proceeding, the difference shall be submitted to and settled by that court or agency, and the record made to conform to the truth. If anything material is omitted from the record by error or accident or is misstated, the parties upon stipulation, or the district court upon motion may direct that the omission or misstatement be corrected. An amended record shall thereafter be transmitted to the Supreme Court. All other questions as to the form and content of the record shall be presented to the Supreme Court.

9(F)

Several Appeals. When more than one appeal is taken from the same judgment, a single transcript (or narrative statement of the evidence or agreed statement) shall be prepared containing all the matters designated or agreed upon by the parties, without duplication.

9(G)

Certification of Copies of Relevant Portions of Original Record for Preliminary Hearing in the Supreme Court. If prior to the time the record is transmitted, a party files a motion for dismissal, for a stay pending appeal, or for any intermediate order, that party or the party responding to the motion, shall attach to the motion a copy of those portions of the original record which are relevant. The clerk of the district court or administrative agency shall attach to the copy a certification stating that the attached portions of the record are true copies of the district court or administrative agency record.

10(A)

Docketing the Appeal. The appellant shall pay to the Clerk of the Supreme Court the required filing fee within the time provided. The Clerk shall then enter the appeal upon the docket. An appeal shall be docketed under the title given to the action in the district court or the administrative agency with the appellant identified as such, but if the title does not contain the name of the appellant, his name, identified as appellant, shall be added to the title.

10(B)

Filing of the Record. Upon receipt of the record by the Clerk of the Supreme Court and after the appeal has been timely docketed, the Clerk shall file the record and immediately give notice to all parties of the date of filing.

10(C)

Dismissal for Failure of Appellant to Cause Timely Transmission or to Docket Appeal. If the appellant fails to timely transmit the record or to pay the filing fee if a filing fee is required, the Supreme Court shall summarily dismiss the appeal on its own motion.

11(A)

Brief of the Appellant. The appellant’s brief shall concisely and clearly set forth under appropriate headings and in the order here indicated:
 

(1)

A table of contents with page references.
 

(2)

A table of citations, which shall alphabetically arrange and index the cases, statutes and other authorities cited, with references to the pages of the brief on which they are cited.
 

(3)

A brief statement of the case, a brief statement of the proceedings and the disposition in the court or administrative agency below.
 

(4)

A statement of facts relevant to the issues presented for review, with appropriate references to the record. The statement shall not contain evidentiary matters unless material to a proper consideration of the issues presented, in which instance reference shall be made to the record or page of the transcript where such evidence appears.
 

(5)

A statement of the issues presented for review which will be deemed to include every subsidiary issue comprised therein.
 

(6)

An argument, which shall contain the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities, statutes and parts of the record relied on. The argument may include a summary. Citations of authorities shall be to the volume and page number of the official reports and also when possible to the unofficial reporters and other sources.
 

(7)

A short conclusion stating the precise relief sought.
 

(8)

An appendix if necessary.

11(B)

Brief of the Appellee. The appellee’s brief shall conform to the preceding subdivision, except that a statement of the case, a statement of the proceedings, a statement of the facts, or a statement of the issues need not be included unless the appellee finds the statements of the appellant to be insufficient or incorrect.

11(C)

Reply Brief. The appellant may file a reply brief, but it shall be confined strictly to rebuttal of points argued in the appellee’s brief. No further briefs may be filed except as provided in Rule 11(e) or by leave of the Supreme Court.

11(D)

Reproduction of Tribal Code Provisions, Tribal Council Resolutions, Applicable Statutes, Rules, Regulations and Instructions; the Appendix. If determination of the issues presented requires the study of Tribal Code provisions, Tribal Council Resolutions, rules, applicable statutes, regulations, or instructions given or refused, the relevant parts of any of the foregoing shall be reproduced in the brief or in an appendix to the brief. An appendix may include additional items of the record, as provided in Rule 9(a)(3). An appendix may include extended quotations from cases and authorities where such quotations are required for proper presentations of the issues.

11(E)

Briefs in Cases Involving Cross-Appeals. A party who files a cross-appeal may combine in one brief his brief as appellee and as cross-appellant. If the appellant files a further brief, he may combine in one brief his reply brief as appellant, and as cross-appellee. The cross-appellant may file a reply brief on the issues of the cross-appeal.

11(F)

Briefs Involving Multiple Appellants or Appellees. In cases involving more than one appellant or appellee, including cases consolidated for appeal, any number of either may join in a single brief, and any appellant or appellee may adopt by reference any part of the brief of another.

12(A)

Time for Filing Briefs. The appellant shall file his brief and four (4) copies within thirty (30) days after the Clerk of the Supreme Court mailing the notice required by Rule 10(b). The appellee shall file his brief and four (4) copies within thirty (30) days after service of the appellant’s brief. The appellant may file a reply brief within 15 days after service of the appellee’s brief, or the appellant may file a notice that no reply brief will be filed, at which time the appeal shall be “at issue.” Otherwise, the appeal shall be “at issue” upon the filing of the reply brief or 15 days after service of the appellee’s brief, whichever first occurs.

12(B)

Number of Copies to be Served. One copy of each brief shall be served on each party separately represented and proof of service shall be filed with the Clerk of the Supreme Court.

12(C)

Consequences of Failure to Timely File Briefs. If an appellant does not timely file a brief, the Supreme Court, upon appellee’s motion, may dismiss the appeal. If the appellee does not timely file a brief, the appeal may be decided on the appellate record.

An amicus curiae brief shall be filed only with permission of the Supreme Court. The motion shall identify the interest of the applicant, state that the applicant has read the briefs of the parties, and reasons why applicant’s amicus curiae brief is necessary. Any response to an amicus curiae brief shall be filed within 15 days after service. No further briefs shall be allowed. Rule 11 shall govern the form of an amicus curiae brief.

Any party may supplement the citation of legal authority previously presented in his brief by filing with the Supreme Court a list of supplemental citations of legal authority. The list of supplemental citations shall clearly identify by page number which portion or portions of the party’s appeal brief is intended to be supplemented. Supplemental citations shall not be accompanied by argument. The form of list of supplemental citations shall be governed by Rule 11(a)(2).

The Supreme Court may direct the attorneys for the parties to appear before the Supreme Court for a conference to simplify the issues, and to address other matters which may aid the Supreme Court in disposition of the proceeding.

16(A)

Appeal Granted May be Scheduled for Oral Argument. The Clerk of the Supreme Court shall notify the parties of the date, time, and place at which oral argument will be heard at least 20 days prior to the date fixed for the oral argument. The notice shall inform the parties of the Supreme Court’s allocation of time to each side at oral argument. Cases given priority pursuant to Rule 27 shall be scheduled as directed by the Supreme Court.

16(B)

Disqualification of Justice. Any Justice may be disqualified on motion of one of the parties or on his own motion. When any Justice is disqualified, the Chief Justice shall name another Justice to complete the panel. A Motion to disqualify a Justice shall be made at least 10 days prior to the date set for oral argument. The motion shall state specifically the grounds on which it is based and it shall be supported by affidavit or other satisfactory evidence.

16(C)

Hearing of Appeals in Open Court. The hearing of oral arguments shall be in open court before a panel consisting of the Chief Justice and two Associate Justices. No judge who heard a case on the merits in the district court shall be named as Justice to hear oral argument on the same case.

16(D)

Failure to Appear by Either Party. If either party fails to appear at the time set for the hearing of the appeal, the Supreme Court may hear the argument presented by the party appearing and decide the appeal on the basis of the presentation and the briefs submitted.

16(E)

Decision on Basis of Briefs Alone. The Supreme Court may, within its discretion or if the parties so stipulate, decide the appeal on the basis of the briefs alone.

Immediately after a decision is rendered or an order is made in any appeal, the Clerk of the Supreme Court shall notify all attorneys of record, and any party not represented by an attorney pursuant to Rule 4(b). The notice shall state the date on which the decision was rendered or the order made, and shall include a copy of any opinion, memorandum decision, or order respecting the decision. The date of notice shall be entered in the docket.

18(A)

Statement of Costs; Objections. A party entitled to costs may, within 10 days after the Clerk has given notice that a decision has been rendered, file with the Clerk a verified itemized statement of costs on appeal. An adverse party may file objections to the statement of costs within 5 days after service of such statement. If no objections are filed, the Clerk may compute the costs in accordance with these rules. If objections are filed, the party entitled to costs may reply within 5 days after service of the objections. The Supreme Court shall then determine the amount of costs, if any, to be allowed.

18(B)

Costs of Briefs; Appendices. The allowance for the cost of the necessary copies of briefs and appendices shall be the amount actually and necessarily expended.

18(C)

Claim for Attorney’s Fees.

 

(1)

When attorney’s fees are claimed pursuant to statute, decisional law, or contract, a request for allowance of attorney’s fees in connection with the prosecution or defense of the appeal shall be made in the briefs on appeal or by written motion filed and served prior to oral argument or submission of the appeal. If recovery of attorney’s fees is allowed by the Supreme Court in its decision, a statement of the amount claimed for such fees may be included in the statement of costs prescribed by Rule 18(a).

 

(2)

The statement of the amount claimed for attorney’s fees shall set forth any relevant statutory or contractual provision and any other factors relevant to the determination of a reasonable fee. Counsel shall also attach and submit an affidavit containing an itemized statement of hours, indicating the following:

 

 

(A)

The date on which the service was performed;

 

 

(B)

The time and costs expended on such date;

 

 

(C)

The nature of the service; and

 

 

(D)

The name and title of the persons performing the service.

18(D)

Clerk to Insert Costs in Mandate. The Clerk shall include in the mandate an itemized statement of any attorney’s fees and costs allowed on appeal.

19(A)

Time for Filing; Response. Any party seeking reconsideration of a decision of the Supreme Court shall file a petition for reconsideration with a supporting memorandum with the Clerk of the Supreme Court within twenty (20) days after the Clerk has notified the parties that a decision has been rendered by the Supreme Court. The petition shall not be amended except by leave of Court.

Any adverse party may file a response to the petition within fifteen (15) days after service of the petition and memorandum. Failure to file a response shall not be considered an admission that the petition should be granted.

19(B)

Contents. A petition for reconsideration and supporting memorandum shall be directed solely to discussion of those specific points or matters of law in which it is claimed the Supreme Court erred.

19(C)

Petitions Set for Oral Argument. After a petition for reconsideration is filed, the Justices who heard the appeal may summarily deny it, or if they believe it has merit, they may set it for oral argument before the original panel with notice to all parties. No single Justice shall have authority to modify the decision or to order any temporary stay of execution of a Supreme Court decision.

19(D)

Petitions not Permitted. Unless permitted by specific order of the Supreme Court, no party shall file a petition for reconsideration of:

 

(1)

an order denying a petition for reconsideration; or

 

(2)

an order declining to accept jurisdiction of a petition for specific action; or

Note: In Bowman v. Greyeyes, No. SC-CV-63-11 (Nav. Sup. Ct. Jan 24, 2012) the Supreme Court interpreted Rule 19(d)(2) as requiring that motions for leave to file a petition for a reconsideration of an order declining to accept jurisdiction of a petition for specific action must first be filed, and must contain the basis for the reconsideration petition in sufficient detail for the Court to rule on the motion for leave.

 

(3)

a decision denying an appeal.

20(A)

Mandates by Supreme Court.
 

(1)

If a petition for reconsideration has not been filed, the Clerk of the Supreme Court shall issue the mandate at the expiration of the time for filing the petition.
 

(2)

If a petition for reconsideration has been filed, the mandate shall not issue until the disposition of the petition.

 

(3)

The papers making up the record on appeal, transmitted by the clerk of the district court or administrative agency to the Supreme Court pursuant to Rule 9(a)(1), shall be returned with the mandate to the clerk of the district court or to the administrative agency.
20(B)

Dismissal in the Supreme Court. If the parties to an appeal file with the Clerk of the Supreme Court a stipulation that the proceeding be dismissed, specifying the terms as to payment of costs, and after all necessary fees are paid, the Supreme Court shall dismiss the case. An appeal may be dismissed on motion of the party appealing or if there are multiple appellants, the appeal may be dismissed only to the appellant motioning for dismissal.

21(A)

Death of a Party. If a party to an appeal dies while the appeal is pending, the action shall not abate unless otherwise provided by law. The personal representative of the deceased party may be substituted in his place, upon motion and supporting affidavit or any relevant document filed with the Supreme Court by the representative, or by any party. The motion shall be served upon all parties to the appeal. If the deceased party has no representative, then any party may advise the Court of the death and proceeding shall then be had as the Supreme Court may direct.

21(B)

Substitution for Other Causes. If substitution of a party is necessary for any reason other than death, substitution shall be effected in accordance with the procedure prescribed in subdivision (a).

21(C)

Public Officers; Death or Separation from Office.
 

(1)

When a public officer in his official capacity is a party to an appeal, and during its pendency he ceases to hold the office, the action shall not abate and his successor will be automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but failure to enter such an order shall not affect the substitution.
 

(2)

When a public officer in his official capacity is a party to an appeal, he may be described as a party by his official title rather than by name; but the Supreme Court may require his name be added.

22(A)

Opinion; Memorandum Decision; Order; Publication.
 

(1)

An opinion is a written disposition of a matter which is intended for publication under subdivision (4) below.

 

(2)

A memorandum decision is a written disposition of a matter not intended for publication.

 

(3)

An order is a written disposition of a matter other than by opinion or memorandum decision and not intended for publication.

 

(4)

Publication is the distribution of opinions for reporting in the Navajo Reporter and such other publications as the Chief Justice shall direct.
22(B)

When Disposition to be by Opinion. Dispositions of all matters before the Supreme Court shall be by opinion only when a majority of the Justices acting determine that it:

 

(1)

establishes, alters, modifies or clarifies a rule of law, or

 

(2)

calls attention to a rule of law which appears to have been generally overlooked, or

 

(3)

criticizes existing law, or

 

(4)

involves a legal or factual issue of unique interest or substantial public importance, or

 

(5)

if the disposition or a matter is accompanied by separate concurring or dissenting expression, and the author of such separate expression desires that it be published. All other dispositions shall be in the form of orders or memorandum decisions.
22(C)

Disposition as Precedent. Memoranda decisions and orders shall not be used as precedent nor cited in any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. Only opinions shall be used as precedent.
22(D)

Designation of Disposition. The disposition of the case shall contain in the caption the designation “Opinion,” “Memorandum Decision,” or “Order.”

In an appeal from a judgment in a proceeding in forcible entry and detainer, the procedure and time period for filing a notice of appeal shall be the same as herein provided for appeals in these rules, except that within five days from the entry of judgment the appellant shall file with the district court an appeal bond as provided in 16 N.N.C. § 1807. Proof that a bond has been filed shall be forwarded to the Clerk of the Supreme Court with the case record.

Note: In Ft. Defiance Housing Corp. v. Lowe, et al, SC-CV-32-03 (2004) the Supreme Court determined that, for due process reasons, the following additional steps must be followed with respect to the forcible entry and detainer appeal bond requirement at 16 N.N.C. §1807: (i) the district court judge shall state the bond requirement in an eviction order; (ii) the bond shall be posted five days from receipt, not entry, of the judgment. In addition, the district court judge shall determine bond according to the guidelines in Navajo Townsite Community Development Corporation v. Edison Sorrell, et al., SC-CV-19-00 (2002).

An appeal from a judgment of a Navajo Nation Children’s Court shall follow the same procedure as provided herein for appeals in these rules, except that the name of the child shall not appear in the record on appeal. The case shall be designated by the child’s initials (i.e. In Re: A.B.C.), or other appropriate designation (i.e. In Re: Doe), and the case number from the Navajo Nation Children’s Court.

The Navajo Nation Children’s Court in its discretion may order a stay of its order in the juvenile case pending the appeal if the Children’s Court considers it to be in the best interests of the child.

Note: The Children's Court was re-designated the Navajo Nation Family Court by Council Resolution on August 16, 1989.

25(A)

Filing Requirements. The appellant may file with the district court or administrative agency a motion for a stay of execution of its judgment or order, at the time the Notice of Appeal is filed, or at any time thereafter. If the district court or administrative agency denies the motion, it shall set forth its reasons in writing.

25(B)

Bond. A stay may be upon an appeal bond, or otherwise, as the district court or administrative agency may require.

25(C)

Documents Forwarded. All original documents, orders, and other papers filed in the district court or administrative agency relating to the stay of execution shall be included in the case file and forwarded to the Supreme Court on appeal.

25(D)

Motion for Stay Denied. If the district court or administrative agency denies the motion for a stay, and only in such case, a petition for a stay may be filed with the Supreme court, which may grant the stay as provided in Part (b) above. The order of the district court or administrative agency denying the stay shall be attached to the petition to the Supreme Court for such a stay. If the district court or administrative agency grants the stay, the order of the stay shall be added to the Notice of Appeal filed with the Clerk of the Supreme Court. The clerk of the district court or administrative agency shall retain a copy of the order granting or denying the stay.

26(A)

Writs of Mandamus and Prohibition. The applicant for a writ of mandamus or of prohibition shall file a petition and the appropriate fee with the Clerk of the Supreme Court. The petition shall contain a statement of the facts necessary for an understanding of the issues presented; a statement of the issues presented; an argument with respect to the issues presented; an argument with respect to the issues presented; a statement of the relief sought; and copies of any order, or opinion, or parts of the record which is necessary for an understanding of the matters set forth in the petition.

26(B)

Service of Petition. The petition for a writ of mandamus or of prohibition shall be served on the respondent judge, and if not a judge, then on the party against whom the writ is sought, and upon all parties to the action in the district court or administrative agency pursuant to Rule 4.

26(C)

Action on the Petition. If the Supreme Court is of the opinion that the writ should not be granted, it shall summarily deny the petition. Otherwise the Supreme Court shall grant an alternative writ and order the respondent to show cause why the writ should not be made permanent. The response to the petition shall be filed by the respondent within the time fixed by the Supreme Court. The order shall be served by the Clerk on the respondent and on all parties to the action. All parties below, other than the petitioners, may be deemed respondents. If the respondent judge does not intend to appear in the proceedings, he shall advise the Clerk and all other parties by letter, but the petition shall not be taken as admitted. The Clerk shall advise the parties of the date of oral argument if ordered by the Supreme Court.

26(D)

Other Extraordinary Writs. Petitions for extraordinary writs, other than those for mandamus or prohibition, shall conform so far as practicable, to the procedures prescribed in subdivisions (a), (b) and (c) of this rule.

Notices of Appeal involving custody of a child, adoption, elections, applications for extraordinary writs, and other Notices of Appeal within the discretion of the Supreme Court shall be given priority over ordinary civil cases.

The appellant or petitioner shall inform the Clerk of the Supreme Court, in writing, of such priority at the time of filing the Notice of Appeal or petition or immediately thereafter.

Whenever counsel has once filed papers in an appeal, such counsel shall not be allowed to withdraw from the appeal, except by order of the Supreme Court upon written motion showing good cause, notice to the client, and naming new counsel.

Where the appeal is frivolous or taken solely for the purpose of delay, or where a motion is frivolous or filed solely for the purpose of delay, or where any party has been guilty of an unreasonable infraction of these rules, the Supreme Court may impose upon the offending attorneys, or parties, or both, such penalties or damages (including contempt, withholding or imposing of costs, or imposing of attorney’s fees) as the circumstances of the case and the discouragement of like conduct in the future may require.

The Supreme Court may, after reasonable notice and an opportunity to show cause to the contrary, and after hearing, if requested by he offending counsel, take any appropriate disciplinary action (including suspension from practice before the Supreme Court or disbarment) against any attorney or advocate, who practices before it for conduct unbecoming a member of the bar, or for failure to comply with these rules or any order of the Supreme Court.