Q: References in appeal brief. Reasoning.

A: The allegations in the amended complaint may not necessarily be referenced in the opening appeal brief unless they are directly relevant to the issue being appealed. The appeal is focused on the court's decision to deny the motion to set aside the dismissal, so the central question is whether that denial was proper under the law and circumstances at the time it was made. Since the amended complaint was filed after the dismissal and the denial of the motion to set it aside, it might not have been formally considered in the decision being appealed.

However, if the amended complaint provides additional context or facts that could support an argument that the dismissal should have been set aside, it might be useful to reference it. For example, if the amended complaint highlights new evidence or circumstances that were overlooked or unavailable during the initial proceedings, it could potentially strengthen the appeal. That said, the focus must remain on the procedural and substantive issues surrounding the denial of the motion to set aside the dismissal, as those are the matters under review.

In drafting the appeal brief, it's important to carefully review the record and ensure that all arguments align with the appellate court's scope of review. If the amended complaint was not formally before the trial court when the dismissal or motion denial occurred, referencing it could risk being seen as introducing issues or evidence that were not part of the original decision. Be precise in determining what is relevant to avoid detracting from the main arguments.