law-reply-brief | common errors on appeal |
REPLY BRIEF IS NOT THE PLACE TO MAKE NEW ARGUMENTS OR TO RAISE
ISSUES NOT ADDRESSED PREVIOUSLY (I.E. IN THE MAIN BRIEF)
An appellant is not permitted to raise an issue in a reply brief which was not included in his
original brief. See Ritter v. Las Colonitas Condo. Ass’n, 319 S.W.3d 884, 891-92 (Tex. App.
—Dallas 2010, no pet.); Moore v. City of Wylie, 319 S.W.3d 778, 781 (Tex. App.—El Paso
2010, no pet.).
A reply brief may not be used to raise new issues. See Dallas Cnty v. Gonzales, 183 S.W.3d
94, 103 (Tex. App.-Dallas 2006, pet. denied).
Issues Presented for the First Time in Reply Brief - Too late!
In his reply brief, Lawrence seeks to add various new issues to this appeal. However, these issues
have not been preserved for appellate review, because they were not raised in his original brief. Gray
v. Woodville Health Care Ctr., 225 S.W.3d 613, 620 (Tex. App.--El Paso 2006, pet. denied) (issue
raised for the first time in reply brief was not preserved for appeal); Howell v. Texas Workers' Comp.
Comm'n, 143 S.W.3d 416, 439 (Tex. App.--Austin 2004, pet. denied) (the rules of appellate procedure
do not allow an appellant to include in a reply brief a new issue not raised by its original brief).
08‑0783 LAWRENCE W. FEW v. CATHERINE J. FEW; from El Paso County; 8th district (08-06-00234-
CV, 271 SW3d 341, 08‑28‑08)
Although related to the award of injunctive relief, the issues Marin raises in the reply brief are wholly
different from the single issue raised and argued in Marin’s opening brief, which only challenged the
permanent injunction based on the law of the case doctrine. See Bankhead v. Maddox, 135 S.W.3d
162, 164 (Tex. App.—Tyler 2004, no pet.) (holding issues raised for first time in reply brief may not be
considered, except perhaps in exceptional cases) (citing Krumb v. Porter, 152 S.W.2d 495, 496 (Tex.
Civ. App.—San Antonio 1941, writ ref’d)); see also Anderson Prod. Inc. v. Koch Oil Co., 929 S.W.2d
416, 424 (Tex. 1996) (court declined to consider issue first raised in reply brief); Lopez v.
Montemayor, 131 S.W.3d 54, 61 (Tex. App.—San Antonio 2003, pet. denied) (court declined to
consider issue not raised in appellant’s original brief or raised in response to appellee’s brief). The
many issues raised in Marin’s reply brief with regard to the permanent injunction were not raised in the
original brief, and cannot be said to be responsive to the arguments contained in the Vogts’ brief,
other than for the fact that they relate to the injunction. See Tex. R. App. P. 38.3 (stating appellant
may file reply brief addressing any matter in appellee’s brief); Lopez, 131 S.W.3d at 61. Accordingly,
these issues are not properly before the court. SOURCE: San Antonio Court of Appeals - 04-10-
00602-CV - 11/23/2011
In his reply brief, Ratcliff raises additional issues that were not included in his original brief. Because
the issues are not properly before us, we do not address Ratcliff's new issues, and we limit our
analysis to the issues raised in Ratcliff's opening brief. Dallas County v. Gonzales, 183 S.W.3d 94, 104
(Tex. App.-Dallas 2006, pet. denied) ("A reply brief may not be used to raise new issues."); see also
Tex. R. App. P. 38.3.
09‑0631 ELIJAH W. RATCLIFF v. LHR, INC.; from Polk County;
9th district (09‑07‑00566‑CV, ___ SW3d ___, 05‑28‑09, pet. denied Oct 2009)
(debt suit, breach of retail installment contract, summary judgment)
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