¶1dissenting. I dissent because this case is being reversed based on an argument that appears for the first time in appellant’s reply brief.
¶2The appellant in this case did not receive a trial, jury or otherwise, because the circuit court involuntarily dismissed appellant’s appeal from district court upon his failure to attend a pretrial hearing. Appellant filed a motion to reconsider asserting that his appeal was wrongly dismissed based on the allegation that he had not received notice of the hearing. In his opening brief, appellant argues that he did not waive his right to a jury trial by failing to appear at the hearing because he had no notice of the hearing.
¶3Before it can be said that appellant was wrongfully deprived of a jury trial, we must first answer the fundamental question posed by appellant in his opening brief, which is whether the trial court erred in dismissing the appeal based on his claim of lack of notice. The majority concludes that the trial court did err, but for an entirely different reason. It holds that the trial court improperly dismissed the appeal based on our decision in Williams v. State, 79 Ark. App. 216, 85 S.W.3d 561 (2002), where we held that Ark. Code Ann. § 16-96-508 (1987) does not permit a trial court to dismiss for the failure to appear at a pretrial hearing. This argument was indeed advanced by appellant - in his reply brief. We should not be addressing this argument, much less reversing, as it has repeatedly been held that an argument cannot be raised for the first time in a reply brief. Owens v. State, 354 Ark. 644, 128 S.W.3d 445 (2003).
¶4I dissent.