any of the seven rules of property law, what is the legal effect of the holding in Ellison? Unknown. What the author does know is that a true legal conundrum is coming – what happens when next each of the seven rules appears in another case(s)? Is the old rule to be followed or the “new” one as expressed in Ellison ? Unknown.
“ The court of appeals in this case followed established law. It is not the function of a court of appeals to abrogate or modify established precedent. See Stark v. American Nat’l Bank of Beaumont, 100 S.W.2d 208, 212 (Tex. Civ. App. Beaumont 1936, writ ref’d). That function lies solely with this Court. Id. Generally, the doctrine of stare decisis dictates that once the Supreme Court announces a proposition of law, the decision is considered binding precedent. See Swilley v. McCain, 374 S.W.2d 871, 875 (Tex. 1964). However, circumstances occasionally dictate reevaluating and modifying prior decisions. This Court may modify judicially created doctrines, Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 735 (Tex. 1985), and in this instance such a change is warranted. 5 “Finally, the doctrine of stare decisis does not stand as an insurmountable bar to overruling precedent. Stare decisis prevents change for the sake of change; it does not prevent any change at all. It creates a strong presumption in favor of the established law; it does not render that law immutable. Indeed, the genius of the common law rests in its ability to change, to recognize when a timeworn rule no longer serves the needs of society, and to modify the rule accordingly 6 …” The cases where The Court overrules previous precedent generally finds The Court carefully analyzing the issue from both sides and thereafter thoughtfully setting forth its reasons for overruling the previous decision/line of cases. Not so here! Oh no, no thoughtfulness here. Seven, count them, seven rules of law had to be at least impliedly overruled in order to reach the result of the case – Widow loses, oil companies win. The reader can be assured that at no point in the case did The Court ever explicitly overrule the principles of law governing the seven rules of law identified herein. However, without explicitly overruling the seven rules of property law the decision should have gone the other way (as it did in the first Court of Appeals decision 7 ).
Retrospective/Prospective Application
One other aspect of this case and the overruling of the herein identified legal principles concerns whether the “new” rule of law is to be applied retrospectively or prospectively only. For sure, the legal principles of law enunciated by The Court were applied in the instant case. Otherwise, The Court could not have reached the conclusion that it did. What is not expressed in The Court’s several opinions is whether the rules of law ignored/rejected/overruled etc. will apply to fact situations which have arisen in the past but have not been litigated or whether they will only apply to fact situations arising after the date of The Court’s most recent opinion on the matter. Or, whether this was a one-off case with the principles of law announced by The Court to only be applied in the instant case. Generally, a Supreme Court of Texas decision is to be applied retrospectively. Without direct guidance from The Court, we are left with a three part test adopted by The Court and quoted below to determine retrospectivity: 8 “…— First, the decision to be applied non- retroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. — Second, [the court] must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and [5] Lubbock County v. Trammel’s Lubbock Bail Bonds , 80 S.W.3d 580, 585 (Tex. 2002) [6] Gutierrez v. Collins , 583 S.W.2d 312, 317 (Tex. 1979) [7] Ellison v. Three Rivers Acquisition LLC , 609 S.W.3d 549 (Tex. App. 2019) [8] Sanchez v. Schindler , 651 S.W.2d 249 (Tex. 1983)
Since The Court did not explicitly overrule
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N at i onal A ssociation of D i v i s i on O rder A nalys t s
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