effect, and whether retrospective operation will further or retard its operation. — Finally, [the court must] weig[h] the inequity imposed by retroactive application, for where a decision of [the court] could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the injustice or hardship by a holding of nonretroactivity. 404 U.S. at 106–07, 92 S.Ct. 349 (citations and quotations omitted).” 9 First, in Ellison, the rules of law being addressed are not clearly and unequivocally overruled. Clearly, The Court is not deciding an issue of first impression since each of the rules of law potentially overturned have been in place, in some instances, for over 100 years. Second, there is no evidence that The Court analyzed the history of the rules of law being overruled or that it evaluated whether the decision should be retrospective or prospective only.
a partial copy of the pertinent provisions of the 2008 Boundary Stipulation. The Court specifically refused to acknowledge or even address the issue of whether the 2008 Boundary Stipulation was a conveyance in spite of the actual contents of the instrument. “… Alternatively, Concho asserts that the stipulation is effective as a conveyance. We agree with Concho’s primary argument and do not address its alternative argument.” 11
In Footnote 10. in the case, quoted in
pertinent part, The Court further held:
“… Because we hold that the stipulation was not void, we need not address whether a contrary holding would summarily foreclose Concho’s ratification defense.” 12 Five very specific provisions in the 2008 Boundary Stipulation clearly classify it, as a matter of law , as a deed. These provisions are: Provision One - Two distinct sets of owners were identified as participants in the 2008 Boundary Stipulation (conveying of sufficient mineral interest each to the other to effectuate the purposes of the instrument): (i) Andrew A. Sugg et al as owners of the minerals under the 493 acre tract and (ii) Carol S. Richey, Trustee of the Richey Living Trust as owner of the mineral estate under the 147 acre tract. The legal effect of the instrument is two-fold: First, to identify the mineral owners under the completely made-up tract locations as herein identified. Second, by such identification and the incorporation of express words of grant, conveying to those mineral owners’ grantors/ grantees sufficient mineral interests to vest each with the interests being stipulated. [9] Life Partners, Inc. v. Arnold , 464 S.W.3d 660, 684 (Tex. 2015) [10] Parts of the discussion under each of the seven subparts is taken from an amicus brief submitted by the author in the Ellison case. No attribution will be made by choice of the author. [11] Concho Resources, Inc. et al. v. Ellison, 627 S.W.3d. 226, 234 (Tex. 2021) (emphasis added) [12] Concho Resources, Inc. et al. v. Ellison, 627 S.W.3d. 226, 234 (Tex. 2021)
Finally, there is no evidence that The
Court weighed the inequity imposed by retroactive application of the new rules of law.
Conclusion: At best, the “new” rules of law as identified in Ellison should only have been applied prospectively and not in this case. The purpose of this paper is to identify the principles of law The Court did address, how and under what circumstances these principles have been applied prior to this case and whether the present application is an express/implied overruling of the case or an example of The Court finding a “new” interpretation of an old real property rule to achieve a “just” decision in the case.
The Seven Rules of Law Not Followed (Overruled?) in Ellison 10
Rule of Law No.1 - What constitutes a deed/
conveyance?
The reader is referred to Exhibit “B” for
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G rowth T hrough E ducat i on - J uly / A ugus t / S ept ember 2024
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