Under the Appellate Rules, there is generally no right to file a reply brief in the North Carolina appellate courts. In the maze of exceptions to this rule, by which replies are permitted, however, one limitation remains constant: an appellant may not raise in a reply brief issues it could have raised in its initial appellant’s brief. See N.C. R. App. P. 28(h). Instead, the Rules limit reply briefs to rebutting any new arguments or issues raised in the appellee’s brief. See, e.g., N.C. R. App. P. 28(h)(3).
In ExperienceOne Homes, LLC v. Town of Morrisville, decided by unpublished opinion on 19 June 2012, Plaintiffs sought to challenge the way the Town of Morrisville handled their request to have certain parcels rezoned for development. In short, Plaintiffs secured approval of the zoning change and ordinances from Morrisville allowing the development, but shifting economic sands required Plaintiffs to make substantial alterations to their development plans. When Plaintiffs submitted these alterations to the Town for approval via a so-called “FDO” or “Flexible Design Option” application, the Town Council denied the FDO application, citing the major changes to the project as proposed.
Plaintiffs raised two theories in their subsequent superior court challenge to the Town’s actions: (1) that the Town should never have required Plaintiffs to submit an FDO application in the first place, and (2) that the Town should have approved the FDO application as submitted. The trial court rejected both theories and granted summary judgment to the Town.
In their initial appellants’ brief brief, Plaintiffs focused on the first theory (among others), but apparently did not address the second directly. When the Town’s appellee brief argued that the Town properly denied the FDO application, Plaintiffs filed a reply brief, citing Rule 28(h)(2) and arguing that the Town should have approved the FDO application.
Rule 28(h)(2) provides:
If the appellee has presented in its brief new or additional issues as permitted by Rule 28(c), an appellant may, within fourteen days after service of such brief, file and serve a reply brief limited to those new or additional issues.
Rule 28(c), in turn, only affords an appellee the right to raise “new” issues in certain limited circumstances:
Without taking an appeal, an appellee may present issues on appeal based on any action or omission of the trial court that deprived the appellee of an alternative basis in law for supporting the judgment, order, or other determination from which appeal has been taken. Without having taken appeal or listing proposed issues as permitted by Rule 10(c), an appellee may also argue on appeal whether a new trial should be granted to the appellee rather than a judgment notwithstanding the verdict awarded to the appellant when the latter relief is sought on appeal by the appellant.
Thus, read properly, Rule 28(h)(2) is a narrow rule allowing a reply brief to be filed to counter appellee’s alternative basis in law to support the judgment. As ExperienceOne Homes makes clear, Rule 28(h)(2) may not be invoked to submit a reply brief arguing issues actually decided against the appellant by the trial court. If appellant wants to challenge such a decision, it must do so in its opening brief, or forever hold its peace.
** My apologies to Solomon for the title of the post.