Winning Argument on Appeal Waived When Raised For the First Time in the Reply Brief
In our third and final post on Rymor Builders, Inc. v. Tanglewood Plumbing Company, Inc.
we explain why the trial court's reversible error did not lead to reversal: Rymor "waived this error because it failed to argue the point until its reply brief." Judge Marshall explains:
Rymor’s opening brief does not seek reversal based on the circuit court’s premature assessment of the witnesses’ credibility. Rymor states one point on appeal: “The ruling of the court is clearly against the preponderance of the evidence.” Rymor’s seventeen-page argument covers the testimony and documents in detail, contending that the weight of the evidence supports the conclusion that Tanglewood broke the parties’ contracts. In a couple of places, Rymor notes that the circuit court rejected its claim because the court did not find Rymor’s witnesses credible. At no point in its opening brief, however, does Rymor argue that the circuit court’s assessment of the witnesses’ credibility at the close of Rymor’s case was a reversible error.
Quoting Judge Easterbrook, Judge Marshall explained the Court's holding:
An argument made for the first time on reply comes too late. Coleman v. Regions Bank, 364 Ark. 59, 64, 216 S.W.3d 569, 573 (2005). “A litigant wanting to challenge the core of the [circuit] court’s holding must do so in its opening brief and not hold its fire until after the appellee has filed its only brief.” Horn v. Transcon Lines, Inc., 7 F.3d 1305, 1308 (7th Cir. 1993) [Easterbrook, J.].
Thus, an appellant with a winning issue on appeal lost the case.
