The sounds of silence, appellate style

Originally published by David Coale.

Simon & Garfunkel’s The Sounds of Silence begins: “Hello darkness, my old friend, I’ve come to talk with you again.” In In re Estate of Buchanan, however, the Fifth Court did not want to talk with the litigants again, after silence on a key issue in a previous appeal. The issue was who had the right to control certain funds based on a series of probate-court orders, which had involved a previous appeal to the Fifth Court. It held: “A reviewing court does not again pass upon any matter presented to, directly passed upon, or in effect disposed of by an earlier appeal to that court. An appellate court’s judgment is final not only in reference to the matters actually litigated, but as to all other matters the parties might have litigated and decided in the case. Thus, if James believed the trial court erred by declaring Jennifer has the superior right to the funds, he needed to raise the issue in that appeal.” No. 05-19-01473-CV  (Nov. 19, 2020) (mem. op.).

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