Can appellate courts refuse to address issues properly briefed in reply briefs? Brown v. Glover Explained

The Utah Supreme Court’s decision in Brown v. Glover clarifies important principles about appellate briefing and when issues may be properly raised for the first time in reply briefs.

Background and Facts

Catherine Brown sued Chick-Fil-A and Hahn Property Management after slipping on chicken at Fashion Place mall. The case suffered from significant discovery delays due to attorney withdrawals and alleged lack of cooperation from defendants. When defendants moved for summary judgment, Brown filed a rule 56(f) motion seeking a continuance for additional discovery. The trial court denied the motion and granted summary judgment, citing Schnuphase v. Storehouse Markets as controlling precedent.

Key Legal Issues

On appeal, Brown argued the trial court erred in granting summary judgment in light of pending discovery motions. She did not initially challenge the merits of the summary judgment ruling. However, Chick-Fil-A raised the merits issue in its response brief, arguing summary judgment was proper because food sampling was not inherently dangerous. Brown then addressed this argument in her reply brief, distinguishing Schnuphase and arguing Canfield v. Albertsons was controlling. The court of appeals refused to consider this argument, claiming Brown had not adequately briefed the summary judgment issue.

Court’s Analysis and Holding

The Utah Supreme Court held that appellate courts must consider issues properly raised in reply briefs when responding to new arguments first presented by appellees. Utah Rule of Appellate Procedure 24(c) expressly directs appellants to “answer any new matter set forth in the opposing brief.” The Court emphasized that fairness concerns underlying the general prohibition against new issues in reply briefs do not apply when the appellee first raises the issue. The Court remanded to the court of appeals to address the summary judgment merits, while affirming the denial of Brown’s rule 56(f) motion due to lack of discovery diligence.

Practice Implications

This decision provides crucial guidance for appellate practitioners about briefing strategy. When opponents raise new substantive arguments in response briefs, appellants should thoroughly address these arguments in reply briefs rather than assuming they are waived. The ruling also reinforces that trial courts have broad discretion in discovery matters, and attorneys must demonstrate reasonable diligence in pursuing discovery to succeed on rule 56(f) motions. Practitioners should maintain detailed records of discovery efforts and promptly move to compel when opponents fail to cooperate.