City of Keller v. Wilson

802 Instead, Council, injured paid was he Reg’l Plan- he when

Pres. Inc. v. Tahoe 324, less 302, 122 fee. As he filed his action than two ning 535 S.Ct. Agency, U.S. thereafter, limi- 1465, result, years by it was not barred L.Ed.2d 517 As a 152 it cases in- tations. inappropriate is often to treat for

volving controlling precedents as one Accordingly, hearing argu- oral without 323-24, Id. at 122 S.Ct. 1465. the other. ment, the court of appeals’ we reverse and to that court for judgment remand physical The distinction between of other issues consideration raised takings to a dif regulatory also leads opinion. in its Tex appeal but reached for Gener ferent accrual date limitations. P. 59.1. R.App. when ally, a cause of action accrues a Trammel’s, wrong produces injury. 80 585; see Nat’l

S.W.3d at also Schneider

Carriers, Bates, 264, Inc. v. (Tex.2004). taking, In a regulatory it

279 injures

is of the ordinance that a passage But value or usefulness.

property’s injury physical taking causes when the KELLER, Petitioner, OF CITY States v. property itself taken. United v.

Dickinson, 749-50, 745, 67 331 U.S. S.Ct. (1947) 1382, (holding taking L.Ed. 1789 91 Wilson, WILSON, Grace S. John W. accrued not when landowners were noti Johnny Nancy L. Wilson property would fied dam flood Wilson, Respondents. A. flooded). actually lands were Simi when 02-1012. No. larly, asserting in cases fee was unauthorized, gen state courts and federal Supreme of Texas. Court just in Tram erally date accrual as we did 19, Argued Oct. paid.1 from the date was mel’s 10, 2005. Decided June case, Lowenberg In this was not 2, Rehearing Sept. Denied fee, injured by enactment of the he regulation de made no claim property. value or his

stroyed use of 1981, U.S., writ); See, Cannon Ball Truck e.g., Venture Coal Sales Co. v. 370 Amarillo no 1102, (Fed.Cir.2004); 927, Stop, Corp., F.3d 1105 Gas v. Inc. Mobil Oil Pacific City, City Elec. Co. v. Union 220 (Tex.Civ.App.-Houston [14th Dist.] of (N.D.Cal.2002); F.Supp.2d course, n.r.e.). ac- Of different writ ref’d Woonsocket, A.2d Paul v. See, e.g., of Kuhn date be set statute. crual Revenue, State, (R.I.2000); Dep’t of 6532(a)(1) (requiring § refund claims U.S.C. 1995); (Colo. Sundance 897 P.2d date years of IRS mails to be filed within two Homes, County DuPage, 195 Ill.2d Inc. disallowance); Ky.Rev.Stat. notice N.E.2d 253 Ill.Dec. 134.580(4) (requiring § suit for refund to be Boehm, Am., (2001); Mktg. Wats later years of the of date filed within four (1993); 494 N.W.2d Pitts Neb. money paid); Md. return was filed or Dallas, County Code, 13-1104(a) (requiring § Tax-Gen. denied); pet. see (Tex.App.-Dallas also years be filed within claim for refund to Samaniego, 954 S.W.2d Camacho v. tax, interest, paid); penalty was Or. date denied); High- pet. (Tex.App.-El Paso (requiring § suit tax re- Rev.Stat. 305.780 Contractors, Equip. way Inc. Texas v. West due). year filed it became fund to be in same Co., Inc., (Tex.Civ.App.-

Jay City Attorney Doegey, Assistant for Christi, Texas, City of Corpus Corpus Christi, Jr., Theodore P. Gorski Office of Worth, City Attorney City for of Fort Daniel, Gandy Mark G. Evans Daniel & Moore, Quast, Fritz Taylor Olson Adkins Elam, LLP, Worth, Fort Sralla Monte & Akers, Austin, Municipal League, Texas Bucek, Michael A. Senior Assistant Brown, Attorney, Irving, F. Robert Brown L.L.P., Richardson, Hofineister, & Bruce Powers, County Attorney, S. Assistant Mi- Stafford, County chael A. Attorney, Harris Houston, for Amicus Curiae. opinion

Justice BRISTER delivered the Court, in which Justice Chief JEFFERSON, HECHT, Justice Justice WAINWRIGHT, and Justice GREEN joined, and in which Justice O’NEILL and joined as to I Justice MEDINA Parts through IV.

Must appellate court a ver- start sufficiency dict consider- only part? all the evidence or Over years, the we have stated both as the proper scope of While some review. see opposing, disagree; the standards as glass like a or half-empty, is half-full at point regardless both arrive the same where start.

But properly both standards must be applied. Rules and reason sometimes compel that evidence must be credited or a verdict supports discarded whether it or scope contradicts it. of re- Under either view, appellate courts must view the evi- verdict, dence the to the favorable Bassel, Dabney Larry Bracken, D. Law crediting favorable evidence reasonable Gambill, P.C., Worth, Snakard & Fort could, jurors disregarding contrary and ev- III, Douglas Lowry, H. Conner L. Stanton unless idence reasonable could not. Boyle L.L.P., Lowry, Irving, & for peti- As we find the evidence here meets nei- tioner. standard, ther we reverse. Barlow, Garsek, James B. Barlow & History I. Factual and Procedural Worth, Bush, Fort Russell Robert L. Bush Morrison, Casey, & David R. Arlington, City The of Keller one of several fast- Hurst, respondents. for the outskirts of growing communities on Plan, the

Fort In with the Master part growth, As of that the accordance Worth.1 of the Wil- City built a box south culvert City plans for two subdivi- approved new developers’ the property. But as sons’ sions, Run Estates of Oak and Rancho north drainage ended at the Wilsons’ ditch Serena, for including plans storm water line, there no link property between drainage. alleged jury the two. The and the Wilsons property The own southeast Wilsons flooding found omission increased this subdivisions, the with tract owned new ruining acres property, eight the Wilsons’ lying Z.T. between. Before Sebastian almost the farmland valued development, gener- surface water flowed $300,000. ally north to south from land where the for inverse damages recover To built, subdivisions were across Se- condemnation, prove had to the Wilsons and into properties, bastian Wilson damaged or City intentionally took Little Bear Creek Watershed. use, sub public or was property their for result.3 be the stantially that would certain In City adopted a Master intentionally City They allege the do not drainage Plan Drainage providing for land, allege ap it do flooded their easements across both the Sebastian and it knew were plans that proved revised into properties,

Wilson and thence Little effect. to have that substantially certain City’s Bear require Creek. The codes de- supports The no evidence City contends Plan, velopers comply with the Master taking. jury’s finding of an intentional provide drainage 100-year rain engineers for presented It event, increasing and to avoid the volume City, and for developers, for the velocity discharged down- upon water all certified City outside firm the retained hill properties. complied plan drainage the revised developers Run of Oak and Rancho regulations— City’s with the codes City plans against increasing Serena submitted indicat- down- the ban including it Thus, ing they buy drainage would easement asserts stream runoff. substantially certain had no forty-five a ditch reason be build feet wide and occur, opposite until did. would yards more long than two hundred across property, the and deed both to Sebastian rejected this appeals A of divided court the City upon completion.2 plans The also sufficiency re- In its contention.4 included detention basins on the subdivi- view, the court refused consider any drainage sion omitted properties, but engineers’ various certifications because or ditch across the Wilsons’ easement and only are the evidence “we to consider public of property. City’s finding The director support tend inferences that developers’ approved plans, works and all and inferences disregard and City challenges contrary.”5 The City accepted completion. the works on developers' depar- City 1. of and maintained after the Fort Worth asserts in amicus approved 325 ture. brief that in 2001 alone sub- 5,857 creating plats lots division residential I, 17; jurisdiction, City v. § Dallas within its extraterritorial which 3. Tex Const. art. of 310, (Tex.2004). surrounding Jennings, of course excludes communities. 142 S.W.3d 313-14 693, 715, by 86 717. 2. and briefs amici indi- 4. S.W.3d Evidence trial normally acquire cities title to these cate that properly are mowed 5. Id. at 700. easements ensure

809 standard).7 applying wrong this omission as “inclusive” Sometimes scope we have mentioned neither all evi- of review. dence nor some disregarding part it.8 many We have on occasions stated the Finally, expressly we have sometimes scope of precisely review as the court of mentioned both.9 (the standard).6 says appeals “exclusive” Although has used this Court both the But we have also that a reviewing stated exclusive and the inclusive standards inter- consider “all court must the evidence” changeably years, over commentators (the in the to the verdict favorable say the two are different.10 Because this See, Stores, Canchola, e.g., Reg’l Gragg, Wal-Mart Inc. v. 8. Tarrant Dist. v. Water 151 735, (Tex.2003) curiam); 546, (per (Tex.2004); 121 S.W.3d 739 Seating, S.W.3d 552 Bostrom Vento, 749, (Tex. Co., 681, v. 48 S.W.3d 754 Inc. v. Crane Carrier 140 S.W.3d 684 Bradford 2001); Zimlich, v. Fort Worth 29 Lozano, 141, (Tex.2004); v. 52 S.W.3d Lozano 62, Stores, (Tex.2000); S.W.3d 69 Wal-Mart curiam); (Tex.2001) (per Corp. 144 La.-Pac. v. Gonzalez, 934, (Tex. Inc. v. 968 S.W.2d 936 Andrade, 245, (Tex.1999); 19 247 S.W.3d La 1998); Cazarez, Cont’l Prods. Co. v. 937 Castillo, 66, Coffee (Tex. tham v. S.W.2d 972 68 444, (Tex.1996); Burroughs S.W.2d 450 Well 1998); Galveston, Brown v. Bank Nat'l 497, (Tex. Crye, come Co. v. 907 S.W.2d 499 Ass’n, 511, (Tex.1998). 513 963 S.W.2d 1995); Browning-Ferris, Reyna, Inc. v. 865 925, (Tex.1993); S.W.2d 928 Holt Atherton See, e.g., Transp. Coastal Co. v. Crown Cent. Indus., Heine, 80, (Tex. 835 S.W.2d 84 227, (Tex. Corp., Petroleum 234 136 S.W.3d Weirich, 1992); 942, Weirich v. 833 S.W.2d 2004); Co., Szczepanik S. v. First Trust 883 (Tex. 1992); Stores, 945 v. Havner E-Z Mart 648, (Tex.1994) curiam); (per S.W.2d 649 Inc., 456, (Tex.1992); 825 S.W.2d 458 Lewell Inc., compare Biggers Sys., v. Bus Cont’l 157 164, (Tex. Lewelling, v. 796 S.W.2d 166 351, 359, (1957) ("We Tex. 303 S.W.2d 363 1990); Co., 805, Burkard v. ASCO 779 S.W.2d evidence, any, consider (Tex. 1989) curiam); 806 (per Brown v. Ed- which, light, sup- viewed in its most favorable Co., 220, (Tex. wards 764 S.W.2d 223 Transfer ports jury findings, and must 1988); Pike, City Gladewater v. all evidence which lead to a would (Tex.1987); Bauer, King 518 v. added), result.”) (emphasis Biggers (Tex.1985); with S.W.2d Tomlinson v. Jones, Inc., (Tex.1984); Sys., Cont'l Bus 157 Tex. ov Gl Co., ("|T]he (1956) er v. Tex. duty Gen. Indem. of this curiam); (per Holley v. [is] Court to examine and consider all of the Adams, (Tex. 1976); issues, bearing controlling on the Alviar, (Tex. Garza having done so to decide whether there is 1965); Wininger Ry. v. Ft. Worth & D.C. probative support evidence of value to 105 Tex. 143 S.W. issues.”) answers made to the omitted) added), (quotation (emphasis See, e.g., Joseph Hosp. Wolff, St. Canode, Cartwright v. 171 S.W. (Tex.2002) (plurality op.); (1914) ("[W]e reject all evi- Corp. Contracting, Associated Indem. v. CAT error, plaintiffs dence favorable to the Inc., only consider the facts circumstances Maldonado, Lloyds State Farm v. Ins. Co. 963 which tend to sustain the verdict.... In con- 38, (Tex.1998); S.W.2d 40 Formosa Plastics sidering question, we this must take into ac- Contractors, Inc., Corp. Eng’rs v. Presidio & count all of the facts and circumstances at- 41, (Tex.1998); 960 S.W.2d 48 Merrell Dow transaction.”). tending the Pharms., Havner, 706, Inc. v. 953 S.W.2d 711 (Tex. 1997); White v. Southwestern Bell Tel. See, Hall, e.g., 10. W. Wendell 260, Standards (Tex.1983); 651 S.W.2d 262 Burk of Texas, 1, Walls, 911, Review in MARY’S 34 ST. L.J. ISO- Royalty (Tex. v. 922 (2002); Dorsaneo, III, 1981); Seale, 591, Judges, 62 William V. 461 Harbin v. S.W.2d 592 Juries, Courts, (Tex. 1970); Allen, 316, Reviewing & 53 SMU L.R. De Winne v. 154 Tex. (1955); (2000); 1507-11 Phil Hardber Bldg, 97 Hall v. Med. Houston, ger, Mary’s Siege, 251 Juries Under 30 St. L.J. 151 Tex. S.W.2d of (1952). Powers, Jr., (1998). 498 40-41 William But see 810 here, of dispositive complete a absence of evidence a vital

important issue is ad- (b) detail, fact; by for dress in some and reserve the court is barred rules of day City’s arguments the that a giving weight another or of evidence from to law entity for governmental cannot be hable only prove evidence to a vital the offered plans, or approving developer’s accepting (c) a fact; prove evidence to a the offered constructing rather than the works at is- fact than vital is no more a mere scintil- sue. (d) la; the evidence establishes conclu- sively opposite the of the vital fact.15 Contrary II. Evidence That quoted have formulation on We similar Disregarded Cannot Be many occasions.16 question here not presented is Notably, proceeded Justice Calvert then 40 years ago, new one. More than then question us in the put proper before Justice Calvert11 addressed the standards context: reviewing legal sufficiency and factual deciding points It “no evidence” in in the law review article in most-cited (c) that situation the courts follow history.12 that de- Texas Frustrated viewing of the evidence in further rule explain spite this Court’s efforts to those support of the its most favorable growing “a recent standards number of fact, finding considering of vital continuing decisions indicate misunder- 13 and the inferences which the evidence standing,” the author summarized and finding rejecting support attempted clarify up Texas law the inferences which are evidence and impact I960.14 The article’s remains sub- contrary finding.17 today, having stantial been cited more than times Texas courts in last the traditional rule in Tex Clearly, years. five appellate courts as has never been article: According no- reject every evidence Instead, must, evidence review. the traditional points and may “No evidence” scope of con only, be sustained when the record dis- review does (a) is no evi- following trary closes situations: there favorable one Court, subject Judge Jury compact Supreme & Texas on the into form under 1699, 1699-1700, (1997) analysis.” Id. at 371. somewhat closer Tex. L.Rev. (concluding changing the Court is not the no- moving of review but is standard Id. 362-63. away duty and to from broad definitions Ranch, particularized See, duty). e.g.,King Chapman, ward definitions (Tex.2003); Corp. Marathon S.W.3d justice W. 11. Robert Calvert an associate Pitzner, v. of this Court 1950 to and Chief from curiam); (per Uniroyal v. Goodrich Tire Co. to 1972. Justice from 1961 Martinez, (Tex. 1998); Ellis, Corp. Mar. Overseas Calvert, W. “JVoEvidence” & "In- Robert Pharm., (Tex. 1998); Dow Inc. Merrell Error, Evidence” Points 38 sufficient Havner, (Tex.1997); L.Rev. Points, Anderson Seven Smith, (Tex.1991); 795 n. Cecil v. 13. Id. at 361. Juliette 510 n. Assocs., Inc., Homes, 793 repeti- Fowler Inc. v. Welch 14. "Most of what has been said here is 660, 1990). (Tex. n. 9 S.W.2d 666 has said before the cited tious what been in purpose of cases the writer and articles. Calvert, 12, writings supra at try bring 17. note 364. here has been former

811 (situation (a) above), publications dence or if al contrary example, For leged evidence renders evidence in- must supporting defamatory to be be viewed as (situation above) (b) competent or conclu- including accompanying state whole— (situation sively opposite ments, headlines, establishes the pictures, general and the (d) above). reputation tenor and of the source itself.20 reviewing sufficiency A court cannot legal show, following examples As the disregard parts publication, of a consider this has remained the rule since. doWe ing only to support false statements presume categorize all circum only plaintiffs sup verdict or true ones to contrary stances which evidence must port a defense verdict.21 be in legal sufficiency considered review. disregarded Evidence can be whenever Similarly, reviewing courts must so,18 reasonable do an inquiry could whole; construe contracts as a we do not necessarily fact-specific. is But it is parts favoring party consider one important that when courts use the exclu remainder, disregard as that sive contrary standard and evi would meaningless.22 render the latter dence, they recognize certain excep writings Even executed at different times tions to it. together must be if they per considered tain the same transaction.23 A. Contextual Evidence In Justice just Calvert’s first situation —a It writings is not that review complete absence of evidence of a vital courts must consider context. For fact—it generally is irrelevant example, whether a intentional reviewing infliction court considers evi- of emotional claims for distress suffi absent, dence.19 If supporting ciency, evidence is “we the context consider and the opposing evidence cannot change relationship parties.”24 that re- between the Acts cases, sult. But in a might outrageous number the lack of constitute conduct supporting may not appear until dealing hearing-impaired when with a cons all the evidence is reviewed context. legally umer25 be insufficient be- J.F.C., 256, (Tex. 18. story See In re right gist 96 S.W.3d 266 are in which details 2002); 340; Uniroyal, 977 wrong). S.W.2d Triton Corp. Oil Sup & Gas v. Marine Contractors & Khan, Shell 22. Oil Co. v. 138 S.W.3d Inc., ply, (Tex.1982). 644 S.W.2d (Tex.2004). Calvert, ("If supra note at 364 there is Parks, County Co-op., 23. DeWitt Elec. Inc. v. an absolute absence of evidence aof vital fact (Tex.1999). S.W.3d appellate ... an court has no occasion to concern itself with an abstract rule such as McLure, (Tex. 24. Tiller v. might how minds of reasonable men view the 2003) curiam); (per also see Tex. Farm Bu situation.”). Sears, reau Mut. Ins. Cos. v. Southwest, Times, Isaacks, (Tex.2002); 610-11 GTE Inc. v. New Inc. v. Bruce, (Tex.1999). (Tex.2004); 158-59 Turner v. KTBK Tele- vision, Inc., Enters., Bien, George 25. See Grubbs Tribune, Guisti v. Galveston 105 Tex. (Tex.App.-Fort 852-53 Worth S.W. 1994) (holding pressure deaf- that efforts Bunton, Bentley buy legally mute consumer to car were suffi infliction), (considering remarks in context of cient evidence of intentional rev’d Turner, (Tex. programs); grounds, series of talk-show other 1995). (holding S.W.3d at 115 defamation includes Competency In no-evi- 13. Evidence parties.26

tween business our claims, we denee of successful reviews long It in has been the rule just invariably reviewed not evidence have incompetent legally that evidence is Texas but showing outrageous, the conduct was judgment, to if support insufficient even context, that, showing in it also evidence Thus, objection.29 evi admitted without showing incompetent was not.27 to be cannot dence it if result con disregarded, be even is trary evidence cannot If the generally, More to verdict. rule were otherwise, al incompetent evidence would way in a be taken out of context sufficient, ways the evi legally be because support a verdict makes it seem to when showing incompetent could dence it to be fact it never did.28 If a witness’s state never considered. be contrary to ment “I did not do that” is verdict, jury’s may court need Thus, eyewitness’s example, for if an statement, can to the whole but a clear view of an accident location renders impossible,” it is no evidence “physically not by disregarding rewrite it the middle occurred, if the eyewitness what even alone. word Similarly, employ- thinks otherwise.30 testimony he in the course ee’s was Thus, legally if evidence be employment legally scope of his is context insufficient in sufficient one his against to support insufficient verdict another, disregarded the context cannot be shows that employer the evidence rendering judgment even if means incompetent.31 to conclusion be contrary jury’s Either “evi verdict. verdict” must be dence ap exception frequently This contextual evi defined exclude material expert testimony. expert When plies to dence, exception sup to the lay or must be an testimony required, is evidence In liability legally insufficient.32 porting rule. general Tiller, objection denied (holding without shall be 26. S.W.3d at 714 ef- mitted See merely contracting probative because it is hear pressure party widow of value forts to say.”). complete legally project were insufficient infliction). evidence intentional Ball, Ry. P. Co. v. 96 Tex. 30. Tex. & See, e.g., (discussing contrary S.W. id. 713-14 showing defendant’s reasonable con- work); Goodman, Stores, plaintiff’s Minyard cerns about timeliness of Inc. v. Food Sears, (discussing contrary (Tex.2002) at 612 (holding defama- employ- claimant scope evidence that defendant believed was not course and tion dealings). suspicious required employee cooper- was involved in ment as duties lie); investigation ate but not to Robertson Lines, Cleave, Van Seating, Tank Inc. v. Crane Carrier Bostrom (Tex.1971) 681, 684, (holding truck (holding driver during employment social supported not in course of no evidence defect as comments context”). father). visit deposition “were out of to his from read Bourdon, 148 Tex. Transp. Co. Crown Cent. Petro 32. Bowles 29. Coastal (1949) (Tex. (affirming directed verdict Corp., 232 n. 1 leum 2004) against malpractice inadequate ex- (citing Henry Phillips, claim as (1912)). pert testimony doctor of same school rule was from S.W. This legally practice proof hearsay rendered changed in 1983. See defendant insufficient). (“Inadmissible hearsay ad Tex.R. Evid.

813 cases, Again, such cannot incompetent. no-evidence review be such evidence contrary showing ex- disregard disregarded; evidence cannot be it must be an was an unqualified give opin- ception witness to the either exclusive standard if an expert’s ion.33 And is based the definition of evi- opinion contrary review or to facts, assumptions on certain about dence. disregard showing

cannot evidence those assumptions were Equal unfounded.34 C. Circumstantial Evidence above, As noted Justice Calvert believed

After we adopted gate-keeping applied only standard exclusive when for expert testimony,35 standards evidence challenge evi- no-evidence asserted the reliability that failed meet standards than But dence was no more a scintilla.39 was rendered not only inadmissible but he went on note a “variation” that re- Thus, as incompetent appellate well.36 an quired contrary inferences to be consid- conducting court a no-evidence review can equal-inference ap- ered when rule expert’s opinion, not consider bare plied.40 also contrary but must consider it has no showing scientific Simi basis.37 sup In claims or defenses larly, of an expert’s damage review esti ported only by meager evi circumstantial mates cannot expert’s admis dence, the evidence does not rise above sion on cross-examination can that none be (and insufficient) thus is legally scintilla

verified.38 jurors guess have to vital would whether a Thus, might evidence that be fact are exists.41 “When the circumstances facts, “some evidence” when iso with equally considered consistent either of two 42 lation is “no nevertheless rendered evi neither fact be inferred.” In such cases, dence” when it to piece shows we must “view each of circum- 114, Helton, Hornsby, 33. See Leitch v. Corp. 935 119 S.W.2d 38. Kerr-McGee v. 133 S.W.3d 1996). (Tex. 245, (Tex.2004). 254-57 12, Burroughs Calvert, Crye, 34. supra See Wellcome Co. 907 v. 39. note at 364. 497, (Tex.1995) (holdmg S.W.2d opinion spray legally caused frostbite was 40. Id. at 364-65. insufficient as it assumed of redness absence plaintiff contrary); when admitted the Roark Ridgway, Co. v. Ford Motor 135 S.W.3d Allen, (Tex.1982) 633 S.W.2d (Tex.2004) (holdmg evidence that (holding opinion physician have should caught unaccompanied proof truck fire possible legally warned skull fracture was any identifying defect did not exceed a scintil physician as it insufficient assumed la, cause); guess would have to Mar proof aware fracture when there was no he Pitzner, Corp. athon was). Oaks, (Tex.2003) curiam); (per Hammerly Edwards, (Tex. Inc. v. du 35. See E.I. Pont de & Co. v. McCann, Nemours 1997); Corp. W. Tel. 128 Tex. Robinson, Calvert, (Tex.1937); su (adopting reasoning of Daubert v. Dow Merrell pra at 365. note Pharms., Inc., 509 U.S. 113 S.Ct. (1993)). 125 L.Ed.2d 469 Indal, Tubelite, a Div. Inc. v. Risica & Sons, Inc., Pharms., Havner, Dow Prods., Merrell Inc. v. Gammage, see also Litton Indus. 706, 714, (Tex. 1997). (Tex.1984) (citing Emanuel, Sling Co. v. (Tex. 1968)). 37.Id. 724-30. isolation, Thus, evidence, evi not in when circumstantial stantial meager, a vital fact is a dence of all the known circumstances.”43 just must not but court consider favorable argued there was “no Justice Calvert evidence, com all the circumstantial necessity for the variation” because draw- peting inferences as well. meager an inference based on evidence not was unreasonable whether or the re- D. Conclusive Evidence viewing opposing the in- court considered Next, Calvert noted Justice Nevertheless, recognized ferences.44 he conducting that Texas courts a no-evidence is opposing present “[t]he that inference traditionally disregard do not con review pres- and it no harm to note does its trary conclusively that establishes evidence ence.” argued fact.48 opposite the of a vital He no- In this is to some extent not a “true” subsequent cases this Court has con- that claim, may have disregard proponents tinued to note rather than evidence inferences, only supports not that no evidence presence equal opposite but show was opposite often lower courts have over- verdict but because are Thus, example, proved as a matter of law.49 There looked them. one evidence. might spilled types infer from cart tracks several conclusive First, conducting legal a appellate court macaroni salad that it had been on the time, sufficiency “disregard undis might a infer review cannot long floor one also only one puted allows of opposite sloppy shopper a re- evidence that —that definition, By such cently Similarly, injury logical when inference.”50 did both.46 only light, one eyewitnesses death evidence can be viewed or occurs without only can one sug- and reasonable reach meager circumstantial evidence from not free cannot conclusion it. Jurors are gests happened, what contrary evi equally likely reach a verdict to such meager other evidence dence; indeed, uncontroverted issues causes.47 Lozano, (Tex.2001) curiam) (court (per 43. 52 S.W.3d at 167. supporting examine record for evidence first verdict, Calvert, contrary; ignoring evidence all supra 44. note at 365. evidence, court then there is no such see if the con- examines entire record Id. 45. finding trary is established as a matter law). Stores, Gonzalez, 46. Wal-Mart (Tex.1998). S.W.2d see, Calvert, supra 49. But note 363-64. Smith, v. 510 n. Pitzner, e.g., Cecil Corp. 47. See Marathon v. (Tex.1991) ("Cecil's (1) points that there curiam); McCann, (Tex.2003) (per (2) findings support evidence no at 900. finding contrary of each was established collectively of law will hereinafter as a matter Calvert, supra at 363-64. But note points.”). be referred to as her "no evidence” Powers, disagree. other See commentators supra We have note at 1703-10. held Wolff, Joseph Hosp. St. point "conclusively and as of law” a matter (quoting (plurality op.) point. be asserted under a "no evidence” Giles, Co. v. Trueles,Inc., Universe Ins. O’Neil Mack Life (Tex.1997)). (Tex.1976). 51 n. 1 And the cases in this section proof by often note that conclusive asserted Burden, proof. & N.O.R Co. v. 146 Tex. parties carry do not the burden of Francis, (1947); see also Chem. See also Dow Co. dence, challenge anything presented be to a at all.52 need submitted opponent.55 his Reviewing legal sufficiency in such cases encompasses review, general no-evidence contrary Undisputed evidence supports if some because the ver- may party also become conclusive when a dict then the was not Thus, a admits it is true. claimant’s ad “undisputed.” But review does not mission that aware of dangerous he was there; stop the evidence must also have premises condition is conclusive evidence logical only Undisputed one inference. ev- warning he needed no about it.56 Similar jurors that idence reasonable could disbe- ly, an ex-employee’s admission that she (1) (2) true, or lieve has two: it is it is not. employment may prove obtained other conclusively detrimentally did not that she often, undisputed Most rely promise on a defendant’s to re-hire (and becomes evidence conclusive thus jurors may her.57 not And find that an disregarded) be cannot when concerns indictment on a was based defendant’s physical facts that cannot be denied. misleading report when the district attor Thus, no supports impaired- evidence an ney admits it was own mistake.58 his claim if it is undisputed access access along a percent remains 90 of tract’s fronta impossible precisely It is to define ge.53 buyer Evidence that a believed a undisputed when evidence becomes conclu product had repaired conclusively been is injured For an example, employee’s sive. by an negated accompanying letter to the may conclusively return to work prove contrary.54 And an liability total,59 insured’s injury has or it may was not not.60 not by been determined an “actual trial” if body in a Circumstances which is found the insured did appear, present suicide,61 not conclusively evi- establish or al- Stores, Miller, Krayer,

Prudential Ins. Co. Am. v. 366 56. Wal-Mart Inc. v. 102 S.W.3d of 779, (Tex.1963) 706, (Tex.2003) curiam). (finding (per 709-10 undisputed of disregarding suicide after dis- Med., facts). 57. See Johnson & Inc. puted portion Johnson v. San chez, 925, (Tex. 1996). 924 S.W.2d Barnett, 52. Sullivan v. 471 S.W.2d Graham, King 126 S.W.3d 78-79 (Tex. 1971); Co., Wright Compress v. Vernon (Tex.2003) curiam) (per (holding no evidence (1956) Tex. 296 S.W.2d supported prosecution malicious claim dis- (“[T]he required trial only court is to submit attorney prosecution trict admitted was due jury finding controverted issues. No is neces any to item he overlooked rather than false establish, facts.”); sary undisputed Clark v. defendants). by statements & Nat’l Accident Ins. Life ("Uncontroverted (1947) 200 S.W.2d Seabolt, 59. Travelers Ins. Co. questions of fact need be and should not (return regular job be submitted to the for its determina required conclusively which use of hand was tion.”); Wheeler, S. Underwriters v. 132 Tex. established did not claimant suffer total loss (Tex.1939). use). Santikos, County Bexar v. Dist., Indep. Temple 60. Navarette v. Sch. (Tex.2004). 460-61 (Tex.1986) (return 309-10 conclusively injury work did not establish was Indus., 54. PPG Ctrs. Part IMB/Houston regular not total as claimant could not do (Tex. P'ship, Ltd. ners voluntarily employer work and accommodat- 2004). duties). ed her with lesser Maldonado, See, Lloyds e.g., Kray- 55. State Farm Co. v. Ins. Co. Am. v. Ins. Prudential 1998). er, (Tex. (Tex.1963). stop would have been able to if low to infer otherwise.62 Evidence had.68 Nevertheless, people is if held conclusive reasonable there no evi- conclusions,63 could not a support because, differ their dence the claim if the depends matter that on the facts of each driver could not see side a train it, case. hit he he could not have before seen sign crossing either.69 category of con There is another course, Of there are few instances evidence, in clusive which evidence is conclusive, disputed which evidence is Undisputed con disputed. evidence and many undisputed in which instances evi- are not the same—undis clusive evidence not. As our dence is sister court has puted may may or not be conclu noted, paid testimony informant sive, may may conclusive evidence conviction, support legally sufficient undisputed. not be “[tjwenty testify nuns de- even Thus, for example, Murdock Mur- time, them the far fendant was with at dock, to support we found no evidence a ... from the scene of crime [and] establishing pater- verdict the defendant’s [tjwenty testify they more nuns that saw nity conclusively proved when blood tests a the informant commit crime.”70 But not the father.64 The evi- he was child’s hypothetical more famous clerical directly disputed was child’s dence —-the Judge Learned Hand the opposite shows conjugal she relations mother testified had limit: during with no one the relevant time.65 else If, however, proved by twenty it were Nevertheless, there no evi- we held was party, bishops either when he used paternity verdict be- support dence contract], a intended [in words the con- cause conclusive evidence to something than meaning else the usual trary.66 them, imposes upon he which law Similarly, in Texas & New Orleans Rail- would still be held.... Compton, Co. v. found no evidence road we jurors may generally believe While either negligence that a an au- railroad’s caused saints, their discretion is limited sinners or into car of a tomobile slam the sixtieth beyond proved question when it is slow-moving Again, train.67 the evidence actually away “eyewitness” pris- far in was hotly disputed railroad wit- —while totally day of the on or blind on crime. warning in signs nesses testified that were legal-sufficiency place crossing, Proper at the car’s and a review driver passenger they nothing, prevents reviewing saw courts from substitut- testified Heyward, Republic Ins. 67. 135 Tex. 62. See Nat’l Co. v. Life 1976). (Tex. 68. Id. Martinez, Uniroyal Tire Co. 63. Goodrich (Tex. 1998); Triton Oil & Gas 69. Id. Inc., Supply, & Corp. v. Contractors Marine (Tex.1982). State, 70. Clewis 133 n. (Tex. 1991).

64. 811 S.W.2d (en (citation banc) (Tex.Crim.App.1996) omit- ted). at Id. 558. Bank, 71. Hotchkiss Nat’l F. jurors, Id. In defense of should (S.D.N.Y.1911). in Murdock was be noted that trier-of-fact judge. a (not opinions just credibility their for those that favoring the ver- jurors, but proper pre- dict) also review parental cases of termi- opin- from substituting vents their defamation,76 nation,75 punitive dam- undisputed ions for truth. When cases, ages.77 In such again, evidence conclusive, to a contrary verdict is it can- verdict disregard- to a cannot be disregarded. not be ed. Clear-and-Convincing E. Evidence F. Consciousness Evidence Since the time of Justice Calvert’s Further, we particu have had to article, new proof claims and burdens larize in legal-sufficiency review cases that require have arisen additions to the volving party why knew a what it took types four no-evidence Justice review course, certain are not amenable Beginning Calvert considered exhaustive. under the review exclusive standard. Supreme with the United States Court’s opinion v. Virginia, appellate Jackson gross Long negligence before had recognized that, courts have “one while burden, a clear-and-convincing meet slender bit of all a evidence” be re Burk recognized Royalty Co. v. Walls court viewing needs to affirm a verdict findings no-evidence review of such the preponderance based on evi “all surrounding had to include dence, higher requires burden of proof facts, circumstances, conditions, higher standard of As we re review.72 just elements or As individual facts.”78 stated, cently legal the standard suffi then Chief Justice Greenhill in con- noted ciency works tandem with standard curring, light speeding running a red of review—“whenever of standard may legally be sufficient evidence proof elevated, at trial is the standard if gross negligence one’s daughter wife and appellate review must elevat likewise be to death in bleeding 73 are the back seat.79 otherwise, If ed.” the rule legally were Reviewing assessing courts evidence support sufficient evidence to preponder a disregard conscious indifference cannot ance-of-the-evidence satisfy verdict would part party a of.80 what was conscious well, higher burdens as rendering thus their differences meaningless.74 reasons, For the same the exclusive

Accordingly, proven we standard of review has legal problematic have held that a sufficiency review must consider all the bad-faith Liability insurance cases. Bunion, 72. U.S. Bentley 320 n. 99 61 S.Ct. 76. v. 94 S.W.3d Inc., Television, L.Ed.2d Turner KTRK (Tex.2000). Garza, 73. Southwestern Bell Tel. Co. v. (Tex.2004). S.W.3d Garza, 77. 164 S.W.3d at 627. 74. sister court Our reviews the sufficien cy considering (Tex.1981). of criminal convictions "all 78. permitted, which the was wheth rightly wrongly, er to consider” in the (Greenhill, C.J., concurring). Id. at 926 prosecution. most favorable v.Moff State, (Tex.Crim.App. Transp. 80. See Co. Pe Coastal v. Crown Cent. 2004); State, see Vodochodsky also (Tex. Corp., 136 troleum 234-35 (Tex.Crim.App.2005). 2004). J.F.C., (Tex. re In

2002). reviewing disregard rule if must all requires proof

such cases that the insurer courts coverage reason- evidence that claimants knew of their denied after became always ably But that standard mil claims.86 clear.81 disregard if courts reviewing be met say reviewing may This court is not a any coverage unclear.82 evidence that was or ex- losing party’s explanations credit Subsequent reviewing cases show that if could For jurors cuses them. at all the evi- looking courts are in fact on an example, while insurer’s reliance coverage was dence to determine whether faith expert report foreclose bad re- reasonably clear.83 covery,87it not do so if the insurer had will report.88 But a some reason to doubt the problem This arises other contexts as ju- cases, reviewing court cannot review whether discharged well. In discrimination reasonably disregard losing rors could have employees prove will never party’s explanations or excuses without was given reason for termination considering what were. pretext if review must no-evidence disre- gard that reason.84 Government officials Contrary III. Evidence That immunity will never be entitled Disregarded Be Must suggesting they consider differently.85 normally have And limi- As on issues should acted trials focus way, never under discovery tations will run could decide either Giles, legal insufficiency insurer’s Co. v. diet for because Universe Ins. Life (Tex.1997). interpretation of exclusion reasonable incorrect). though (noting problem 82. See id. at 51 same with previous test whether insurer had reasonable Stores, Canchola, 84. Wal-Mart Inc. claim). denying basis for curiam) (not (per ing liability may by proof be established Int’l, 83. See v. Nat’l Fire Ins. Rocor Inc. Union employer’s plus proof discrimination reason (find- 262-63 pretext); Prods. was rez, Cont’l Co. v. Caza Coffee part bad faith based in no (Tex. 1996) (same). showing correspondence defendant’s misun- terms); derstanding regarding settlement See, Clark, e.g., 85. Univ. Houston v. Simmons, Co. v. State Farm Fire & Cas. (Tex.2000) (noting good-faith S.W.3d (Tex.l998)(affirming S.W.2d bad-faith test all which of- considers circumstances on noting gave contra- verdict after that insurer acted). ficial potential dictory interviewing reasons for not arsonists); Vasquez, Minn. Ins. Co. Life See, Indus., e.g., PPG Inc. v. IMB/Houston (Tex.App.-Corpus S.W.3d Christi Ctrs. P’ship, Partners Ltd. filed) (finding pet. some evidence of bad (Tex.2004) (holding supported no evidence because, hospital though insurer showed faith discovery jury applying verdict rule based on records, stymied its efforts to obtain insurer contrary predecessor evidence that claimant’s from failed to seek same information other 3,000 failed). knew windows had Mason, sources); Lloyds v. Allstate Tex. (Tex.App.-Fort Worth 704-06 See, e.g., Ins. Co. v. Castane- Provident Am. pet.) (reversing verdict no bad-faith for da, (Tex.1998) (find- 194-95 reasonably insufficiency because insurer ing no evidence denied claim in bad insurer expert report); Fire relied on Allison v. Ins. evidence). conflicting faith due to medical Exch., (Tex.App.-Aus- 2002, pet. judgm’t granted, tin vacated See, Nicolau, Lloyds v. w.r.m.) e.g., State Farm (affirming bad-faith verdict after re- (Tex.1997) (holding some viewing delay insurer’s reasons in- evidence); pretext expert report responsive v. State evidence showed sured’s Oram Lloyds, (Tex.App.- denial of had no reasonable thus claim Farm basis). (reversing pet.) Austin no bad-faith ver- courts must do so. Courts reviewing all the evidence the verdict far more often than in a light must favorable to the verdict thus consider it. Just as no-evidence review assume that credited testimony fa- that starts vorable to by the verdict and disregarding contrary evi- disbelieved testi- mony contrary dence often must to it.92 up end considering con- more, siderably no-evidence review that example, For viewing the evidence in begins by considering all the evidence light favorable to the verdict means usually must up end considering consider- that if parties both in a traffic accident ably less. testify they green had light, appel- an presume late court must Again, prevailing we do not presume categorize party did and the losing party did not. If all circumstances in which contrary evi- parties testify oral contract disregarded; dence must be a few exam- terms, conflicting a reviewing court ples serve to demonstrate that even under presume the terms were those asserted standard, the inclusive viewing all the evi- the winner. all When the evidence is dence in a light favorable to the verdict viewed in the most favorable to the requires often that much of it be disre- verdict, jury some of must completely be garded. discounted. Though disregarded Credibility A. Evidence outset, the end result is the same.

Jurors are the judges sole always This has been our practice in credibility of the witnesses and the using cases the inclusive scope of review. weight give their testimony.89 They Thus, we have concluded that a bailee sold may choose to believe one witness and cotton consent, without the bailor’s despite disbelieve another.90 Reviewing denials, courts the former’s because the ver- cannot impose their opinions own to the dict favored the latter.93 And we have contrary.91 gross affirmed a negligence verdict based on testimony that speed the defendant’s Most credibility questions are im hour, was 80 per miles without mentioning plicit rather than explicit in jury’s ver testimony his own to a speed half that.94 Thus, dict. reviewing courts must assume jurors decided all of them favor of the Nor it necessary to have verdict if reasonable beings human could testimony from parties ju- both before Eagle Jackson, 89. Archery, Golden Television, Inc., Inc. v. 116 91. Turner v. KTRK 38 S.W.3d 757, (Tex.2003); S.W.3d 761 103, (Tex.2000). 120 Jaffe Aircraft Can, 27, Corp. (Tex.1993); v. 867 S.W.2d 28 Kuhlmann, 694, McGalliard v. 722 S.W.2d Runnels, 92. 47 S.W. at 972. (Tex.1986); 89, Edrington 697 Kiger, v. 4 Tex. (1849). 93 Co., 93. Cochran v. Storage Wool Growers Cent. 184, 904, (1942) 140 Tex. 166 S.W.2d 907 McGalliard, 697; 90. 722 S.W.2d at Silcott v. (noting the Court "read the entire statement 290, Oglesby, (Tex.1986); 721 S.W.2d 293 facts”). Co., Ford Ry. v. Panhandle & Santa Fe 151 538, 561, (1952) (hold- Tex. 252 S.W.2d 563 Seale, 591, (Tex. ing 94. Harbin v. up jurors it was 461 S.W.2d "to 594 resolve conflicts 1970); Seale, compare and Harbin v. testimony any inconsistencies in the 271, 1970) (Tex.Civ.App.-Dallas one witness as 272 testimony (report well as in the witnesses”); Houston, ing different Ry. testimony E. & W.T. defendant's that he was travel Runnels, 305, 971, rev’d, Co. hour), v. 92 only per 47 S.W. 972 40 miles (1898). (Tex.1970). 591 820 may testimony conclusively negated by that is either. Jurors

rors disbelieve unim- facts. But whenever disregard undisputed even uncontradieted and reason- testimony jurors from disinterested able could peached testimony decide what Thus, an uncon- discard, reviewing architect’s a witnesses.95 court must assume testimony that he relied on verdict, tradicted in favor they did so of their binding was not on 20-year warranty it in course sufficien- specifications he jurors when the bid cy review. much only shorter

prepared included un- was an insured’s warranties.96 Nor Conflicting B. Evidence fur- testimony about lost contradicted It is the province binding jurors when the fire nishings conflicts the evidence.101 Ac resolve indications of ar- contained several scene reviewing courts all the evi cordingly, Even few of furniture.97 son but burnt dence in a favorable to the verdict expert testimony does uncontroverted jurors that all must assume resolved con jurors subject mat- bind unless accordance that flicts in with verdict.102 alone.98 experts ter is one has always this been the case Again, course, jury’s Of deci “[t]he using even in those cases the inclusive credibility must be reason regarding sions 99 scope example, of review. For such undisputed ignore Jurors cannot able.” direct, clear, we have sometimes detailed testimony positive, cases is credible, supported jury’s from fraud free contradic otherwise inconsistencies, have finding.103 We affirmed bad-faith could have tions legal sufficiency despite “signif- verdict for readily And as not controverted.100 been above, the insurer free to believe icant evidence” acted are not ed (Tex.2000); S.W.3d 95. MCI Telecomms. Corp. v. Tex. Elec. Doe Utils. 1999) WFAA-TV, McLemore, (Tex. Co., 653-54 S.W.2d Inc. v. (holding (holding reporter’s evidence allowed disbelieve detailed experts’ testimony though report explanation even of foundation of defendant’s estab law). expert’s testimony was to be plaintiff’s shown of malice lished lack as matter of 972; error); Runnels, 47 S.W. Cheatham Riddle, 12 Tex. v. Indus., See, Lee, 101. e.g., Dresser v. Inc. (Tex.1993); Lyons S.W.2d Millers Indus., Ctrs. Part 96. PPG JMB/Houston 866 Cos. Ins. (Tex. P’ship, Ltd. ners Inc., 157 Tex. Sys., Bus Biggers v. Cont’l 2004). (1957); Howard Oil Co. (1890) Davis, 76 Tex. 13 S.W. Bowers, Anchor Cas. Co. v. uphold jury (holding court must (Tex.1965). despite strong con- verdict conflicting). trary if evidence Martinez, Uniroyal Co. v. Goodrich Tire (Tex.1998); McGalliard Sanchez, See, e.g., Corp. v. Gen. Motors 694, (Tex.1986). Kuhlmann, 584, (Tex.1999); er-T 997 S.W.2d Call Communications, Publ’g Co. v. imes Triad 561, Bunton, 94 S.W.3d 99. Bentley v. (Tex.1992); Benda- Inc., 826 S.W.2d (Tex.2002). (Tex. 406 S.W.2d Delgado, lin v. 1966). 166a(c); P. 100. See Tex.R. Civ. Wal-Mart (Tex. Stores, Reece, 81 S.W.3d v. Inc. 103. Corp. 2002) USA Presidio (finding knew of Formosa Plastics no evidence store Contractors, Inc., 960 S.W.2d testi Eng’rs & puddle part based in on uncontradicted (Tex.1998). area); by only employee 48-49 mony In re good faith.104 conflicting We have found some evi- legal evidence their sufficien- cy dence of profits, though lost even review. income tax returns contrary.105 showed the And Conflicting C. Inferences jury’s

we have affirmed a negligence find- ing despite a defendant’s evidence assert- if undisputed, Even evidence is it ing it prevented province jury could not have the acci- to draw from it wish, dent.106 long whatever inferences so as more than possible one is and the In none of these cases did we state that Thus, simply must not guess. product scope required review us to disre- liability jurors may cases find evidence of a gard verdict; contrary to the in- modifications, subsequent defect from even stead, we considering started the entire plenty there were of other reasons record in each. But in each case we either changes.109 Even if a defendant ad discounted or conflicting never mentioned approaching mits an intersection from the to the verdict because wrong way street, a one-way jurors viewing the evidence in light favorable may infer plaintiff keep failed to to the verdict required us to do so. lookout, proper possible as that is one course, Of always is not clear whether inference from the accident itself.110 Simi evidence is conflicting. Evidence is not larly, jurors may infer that relatives tore just conflicting parties because the cannot posters down of a missing child to assist agree to it. For example, evidence that a father, the child’s though even another hospital controlled doctor’s rotation and inference signs simply embar patient assignments raises no material rassed them.111 conflict with evidence that a different enti- Accordingly, courts reviewing all ty controlled the details medical treat- the evidence in a favorable to the ment, the latter is material in a jurors verdict must assume made all infer malpractice case.107 Similarly, evidence ences in favor of their verdict if reasonable showing the terms of one loan does not could, disregard minds all other infer conflict with undisputed evidence that the ences in their sufficiency review. parties never reached an agreement re- garding the terms of another.108 Reconciling IV. the Standards in every circumstance in

But Having noted the dual lines au which reasonable could resolve con thority stating scope of no-evidence flicting way, evidence either reviewing review, proper and the application and ex courts presume they did so in favor each, ceptions to turn question to the of the prevailing party, the which one is correct. For the reasons Corp. Paso, Associated Indem. 104. v. CAT Stanley Contract- 108. T.O. Boot Co. v. Bank Elof Inc., ing, (Tex.1998). (Tex.1992). 964 S.W.2d Martinez, Uniroyal Goodrich Tire Co. v. 105. White v. Southwestern Bell Tel. (Tex.1998). 341-42 (Tex. 1983). 262-63 Allen, 110. De Winne v. 154 Tex. Houston, Bldg, 106. Hall v. Med. 151 Tex. (1955). Lozano, Lozano Joseph Hosp. Wolff, St. curiam); (per id. at 162-63 (Tex.2002) (Hecht, J., (plurality op.). 542-43 concurring dissenting).

822 it.114 But if below, port answer the evidence allows of

discussed believe the is inference, jurors neither nor the one both. may disregard court reviewing it.115 A. Goals: Standards premises, it is Given these no coinci- The Same Must Be dence that the two standards should reach begins by a court review Whether must. Any the same result—indeed disregarding part in ing all the evidence or scope appellate review smaller than review, a can be no legal-sufficiency there jurors could what reasonable believe will disagreement about where that review perfectly reverse some verdicts that are reasonable; If trial any larger should end. the evidence at would scope review people jurors than reasonable could believe reasonable and fair-minded what enable not. conclusions, will affirm some verdicts are to differ their then reviewing A must be allowed to do so.112 Further, the two must coincide judgment court cannot its substitute perform its this Court is constitutional trier-of-fact, long so as the Although sufficiency factual has duties. falls within this zone of reason domain of the intermediate been the sole able disagreement.113 1891, our courts Texas since appellate has included suffi jurisdiction always is disagree there no Similarly, law, ciency, that is question as how reviewing ment about court should re Construing fact.116 either standard to process of that re view evidence in just uncon quire to do would be as us less court starts view. Whether allow us construing either to stitutional record, only part with all or to do more. in the court must consider evidence verdict, lawyers judges indulge say favorable to the This not to most is le- .agree sup- always inference that would will whether every reasonable curiam); Corp. USA v. Gragg, (per Formosa Plastics Reg'l Water Dist. v. 151 See Tarrant Contractors, Inc., 546, (Tex.2004); 960 Eng’rs & Transp. 552 Coastal Presidio S.W.3d Havner, 41, (Tex.1998); 48 953 Corp., S.W.2d Co. v. Crown Cent. Petroleum 136 Giles, 711; 227, (Tex.2004); Ins. Co. v. Motor Co. S.W.2d at Universe S.W.3d 234 Ford. Life 48, (Hecht, J., 598, (Tex.1997) (Tex.2004); con 950 S.W.2d 75 Ridgway, v. 135 601 S.W.3d Ellender, 917, Heating Air Corp. curring); & Condition S.W.2d Mobil Oil v. 968 Preferred 67, (Tex. Pharm., (Tex.1998); Shelby, 68 v. 778 S.W.2d 922 Dow Inc. v. Co. Merrell 706, 1989) Havner, (Tex.1997); curiam); Royalty v. (per Burk Co. 953 S.W.2d 711 Walls, 911, (Tex.1981); Har Burroughs Crye, v. 616 S.W.2d 922 Wellcome Co. 591, 1970); 497, Seale, (Tex. (Tex.1995); Transp. v. 592 Co. v. bin 499 Ins. Mor McCann, 582, id, 10, (Tex.1994); 99 Corp. W. v. 128 Tex. S.W.2d 25 v. Tel. 879 Orozco 895, Sander, (Tex. 1937). 556 dr S.W.2d 898 Kin Inc., Con/Chem, 650 ed v. S.W.2d 63 Stores, (Tex. Inc., 1983); Safeway v. Corbin at 519-20 Joseph Hosp., See St. (Tex.1983) curiam). (per Giles, S.W.2d 297 (Tex.2002) 648 (plurality op.); S.W.2d (citing & D.C. Wininger at 51 v. Ft. Worth n. 1 Powers, Ratliff, Ry. Tex. S.W. Jr. & Jack 113. See William Rooks, (1912) Ry. Co. v. and Tex. & N.O. Look "No Evidence’’ & Another at "Insuffi- Evidence," (Tex.Comm’n.App.1927)). S.W. 556-57 69 Tex L.R. cient Garza, Tel. Co. 116. Southwestern Bell (Tex.2004) 552; (citing Choate Gragg, Joseph St. (Tex.2002) 44 S.W. Ry., & A.P. 91 Tex. Wolff, San Antonio Hosp. v. N.Y., (1898); Ry., T. Sys., & M. (plurality op.); Mobile Muhle Southwestern Bell (1894)). Franco, 25 S.W. 823 gaily sufficient. As folly discussed more Our statements of the standard for re- below, people may reasonable disagree viewing a present directed verdict jurors about what reasonable could or bag same mixed found general with no- must believe. But once those boundaries evidence review. have We most often settled, any are standard of review standard, used the exclusive stating that coincide with those affirming boundaries — courts reviewing directed verdicts must jury verdicts based on evidence within supporting consider the non- reversing jury them and verdicts based movant’s case and disregard all evidence that Any is not. standard that evidence.117 But we have also stated that does otherwise is improperly applied. reviewing courts should use the inclusive standard, considering all the in a B. Other Motions: The Standards light contrary to the directed verdict.118 Must Be The Same both, And we have sometimes stated re- Just as the scope of no-evidence quiring reviewing courts consider all the review must coincide goals, with its evidence in a contrary to the directed scope of review depend upon should not verdict and then to disregard motion in which it all conflict- Judg is asserted. ment against without or ing verdict is supports evidence that it.119 proper any course of the proceedings contrast, By concerning cases judgments only when the law does not allow reason non obstante veredicto most utilize often able to decide otherwise. Accord scope inclusive of review. Beginning ingly, the legal sufficiency test for should with the 1931 authorizing amendment trial be the same for summary judgments, di them,120 judges grant generally we have verdicts, rected judgments notwithstand verdict, reviewed such orders appellate considering all no-evidence review. the evidence in a light favorable to the Transp. (1941); 117. Coastal Co. v. Crown Cent. Wellington Maffi, Petro- Oil Co. v. 136 227, Corp., (Tex.2004); 201, leum 136 60, S.W.3d (1941); 234 Chicago, 150 S.W.2d 61 R.I. Sys., Co., Qantel Bus. Carter, 135, Custom Controls Ry. & G. Co. v. 261 S.W. 135 302, (Tex.1988); 761 S.W.2d 303 Hart v. Van (Tex.Com.App.1924, judgm't adopted); Zandt, 791, (Tex.1965); 399 S.W.2d 793 Tri- Co., Ry. Charles v. El Paso Elec. 254 S.W. Richmond, angle 354, Motors v. 152 Tex. 258 1094, (Tex.Com.App.1923, holding 1094—95 60, (1953); S.W.2d 61 Ford v. Panhandle & approved, judgm't adopted). Co., 538, Ry. Santa Fe 151 Tex. 252 S.W.2d 561, (1952); Anglin 562 Mortgage v. Cisco Co., Szczepanik v. First S. Trust 883 Co., 188, 935, Loan 135 Tex. 141 S.W.2d 938 648, curiam); (per S.W.2d 649 My Apartment Vance v. Steak House San Antonio, Inc., 480, (Tex. 677 S.W.2d 483 Co., Seating, 118. Bostrom Inc. v. Crane Carrier 1984); Stores, Inc., Safeway Corbin v. 648 681, (Tex.2004); R.V., 140 S.W.3d 684 S.V. v. 292, (Tex.1983); S.W.2d 295 Jones v. Tarrant 1, (Tex.1996); 933 S.W.2d 8 Colvin v. Red Co., 862, (Tex.1982); Util. 638 S.W.2d 865 Co., 243, (Tex.1984); Steel 682 S.W.2d 245 Navarro, 65, (Tex. Collora v. 574 S.W.2d 68 Co., White v. Southwestern Bell Tel. 1978); Henderson v. Travelers Ins. 260, (Tex.1983); Seideneck v. Cal 649, (Tex.1976); Jones v. Assocs., 752, Bayreuther (Tex. 451 S.W.2d Nafco Gas, Inc., 570, (Tex. Oil & 380 S.W.2d 1970); 630, Dunagan Bushey, v. 152 Tex. 1964). (1953); Hull, Fitz-Gerald (1951); 150 Tex. 25, 1931, Kelly McKay, R.S., 149 Tex. April Leg., 120. Act of 42d ch. (1950); White, 119; § White v. Myers 141 Tex. 1931 Tex. Gen. Laws (1943); Crenshaw, v. Travis 134 Tex. McAfee Parks, Corp., Gas 137 Tex. Hines v. 128 Tex. 824 summary scope judgments. In later of review for

verdict that was set aside.121 years adopted the ex- Here, we have sometimes is only there one standard —a re- standard,122 opinions doing our clusive viewing court must examine the entire rec- general no-evidence cases usually so cite light in the most to the ord favorable in n.o.v. in- judgment which no nonmovant, in- indulging every reasonable volved.123 resolving any against and ference doubts do not Reviewing motion.124 courts

The in exception one which both stan- the mo- expressly appear disregard supporting is in the dards do 970, (Tex. veredicto.”); 1936). judgment Cra obstante see 971 Deal v. non S.W.2d Cf. ven, 1046, 1925, Builders, Inc., (Tex.Com.App. Ballantyne Champion 277 S.W. 1047 also v. (“It long judgm’t adopted) 417, (Tex.2004) has been settled (uphold- S.W.3d 424-29 144 judgment must this state that follow ing judgment non obstante veredicto based on verdict, power are and that courts without verdict). contrary to conclusive evidence judgment notwithstanding a verdict enter issue.”). upon a material McLure, 709, v. 122. See Tiller 121 S.W.3d 713 Stores, curiam); (Tex.2003) (per Wal-Mart Ass’n, Galveston, 121. Brown v. Bank Nat’l Miller, 706, (Tex.2003) v. 102 S.W.3d 709 Inc. 511, 1998) (“[W]e (Tex. con 963 S.W.2d 513 curiam); Mancorp, Culpepper, Inc. v. 802 (per light sider the evidence in the most favorable 226, 1990); (Tex. Ryan 121 Best v. S.W.2d the verdict reasonable inferences Inc., 670, (Tex. Group, 786 S.W.2d 671 Auto it.”); Ratcliff, support tend Trenholm v. 1990) curiam); 927, 1983) ("In (per Temple Navarette In (Tex. v. acting 646 S.W.2d 931 Dist., 308, (Tex. notwithstanding dep. Sch. 706 S.W.2d 309 judgment [for on the motion verdict], Jones, 490, 1986); testimony all must be in a viewed Tomlinson v. 677 S.W.2d Bennett, light party against (Tex.1984); favorable to the most v. 610 Williams 492 sought, every 144, 1980); motion is reason (Tex. whom'the v. Tex. 145 Freeman S.W.2d able deducible from the evidence 186, intendment Co., (Tex. Comp. Ins. 603 S.W.2d 191 favor.”) (em indulged party’s is to be in that Co., 1980); Dodd v. Farm Prods. 576 Tex. Inc., added); phasis Dowling Mktg., v. NADW 812, (Tex.1979); Campbell v. S.W.2d 814-15 726, (same); 631 S.W.2d 728 Co., Ins. 573 S.W.2d Northwestern Nat’l Life 776, Panama, Inc., Douglass 504 v. S.W.2d 496, (Tex.1978); Laundry v. 497 Miller Bock 1974) Pacheco, (Tex. (same); Leyva 777 v. 163 Co., 648, 1977); (Tex. 568 S.W.2d 650 Mach. 547, 638, (1962) (same); 550 Tex. 358 S.W.2d Jenkins, 863, (Tex. v. S.W.2d 865 Sobel 477 Walker, v. Fire & Cas. Ins. Co. 152 Houston 1972); Campbell, 406 Transp., & R. C. 503, 600, (af (1953) Tex. 260 S.W.2d 603-04 191, 1966). (Tex. S.W.2d 193 firming implied court’s of one trial based "consideration of the answer Tiller, (citing at Brad 123. See 121 S.W.3d 713 Lochausen, whole”); transcript as a Burt v. Vento, 749, (Tex.2001)); 754 v. ford 194, (1952) 151 199 Tex. Best, Miller, (same); 786 102 at 709 S.W.3d ("[W]e testimony consider all the in the must Bauer, King (citing 671 688 v. S.W.2d standpoint most favorable to record from Tomlinson, 1985)); (Tex. 677 846 S.W.2d added); (emphasis Neyland v. plaintiff.”) (citing Gen. In- at 492 Glover v. Tex. S.W.2d Brown, Tex. S.W.2d 211 170 Co., (Tex.1981)); dem. S.W.2d (Tex. 1943) (considering judgment non obstan- (citing Campbell, at 497 Martinez light te "in the of the record as veredicto Inc., Brands, S.W.2d Delta v. whole”); Worth Le Master v. Fort Transit 1974)); (Tex. at 193 Campbell, 406 S.W.2d (1942) Canode, (citing Cartwright 106 Tex. ("[W]e testimony, as must view LeMaster’s (1914)). S.W. 697-98 record, testimony well all other from him.”) (em- standpoint most favorable Desoto, Tex., Ctr. 124. IHS Cedars Treatment added); Corp., phasis v. Travis Gas McAfee Mason, (Tex. (1941) Inc. 137 Tex. 2004); Co. v. ("[W]e & Ins. Provident Accident regard the evidence contained Life Knott, its this most favorable record Stores, Rodriguez, ... instructed verdict Wal-Mart Inc. McAfee because of the tion; did, if they summary judgments all only part of the evidence should be consid- ered, would be reversed. Supreme Court stated: Appeals Courts have articulated however, In practice, scope a different differing formulations as to what evi- applies summary judgment review when a in ruling dence a court is to consider on motion is filed supporting without evi- a Rule 50 motion. Some decisions have cases, In dence.125 such support- evidence that stated review is limited to that evi- effectively the motion is disregarded nonmoving party, dence favorable to the none; rule, because there is under the it is while most held that have review ex- Thus, not allowed. although a reviewing record, drawing tends to the entire all court must summary judg- consider all the in reasonable inferences favor of the file, ment evidence on in some cases that nonmovant. review will effectively be restricted to the contrary to the motion. examination, On closer this conflict seems more semantic than real. Those The standards for taking any case from decisions that holding review under Rule jury same, should be the no matter 50 should be limited to evidence favor- what only motion is used. If one standard able to appear the nonmovant to have proper,

were we would expect not both to their in genesis Wilkerson v. McCarthy appear in reviewing cases directed ver- Wilkerson, In [128]. we stated that “in dicts, judgments notwithstanding the ver- passing upon whether there is sufficient dict, summary judgments. But both jury evidence to submit an issue to the do. we need look to the evidence and sup- reasonable inferences which tend to C. Federal Courts: The Standards port the nonmoving par- case of’ the Are The Same ty.[129] subsequent But decisions have The federal courts have had a similar passage clarified that this referring split of authority between the inclusive and to the evidence to which the trial court exclusive scope standards for of review. credence, give should not the evidence But no longer United States Su- —the the court should review. In the preme Court recently concluded Reeves analogous context of summary judgment Products, Sanderson Plumbing Inc. under Rule we have stated that the that the two tests are the same.126 court must review the record “taken as a Under Rule 50 of the federal rules whole.” And granting the standard for procedure, a court should judgment summary render judgment “mirrors” the stan- as a matter of law when law, “there is no dard judgment as a matter of legally sufficient evidentiary basis for a such that inquiry “the under each is the reasonable party that, find for that same.” It therefore follows en- that issue.”127 In deciding whether all or tertaining judgment a motion for as a (Tex.2002); Am 50(a)(1). Mission Gonzalez 127. Fed.R.Civ.P. Co.,

ins. Bayouth v. Lion Oil 128. 336 U.S. 69 S.Ct. 93 L.Ed. 497 (Tex.1984). (1949). 166a(i). 125. See TexR. Civ. P. Id. at 69 S.Ct. 413. 133, 150, 126. 530 U.S. 120 S.Ct. L.Ed.2d 105 law, clearly matter of should anee of evidence that court review all of the record.130 wrong unjust.131 Supreme We address the Court’s conclu- there always exceptions But have been sion as to appropriate the most standard to this distinction.132 As demonstrated below; the point relevant here is its con- above, generally Parts II and III it is true clusion differences between the inclu- legal-sufficiency that the result review is are sive exclusive standards more se- evidence, but there mantic than real. court exceptions are when can- in drawing It is Objections: surprising D. not. The Standards Are Not The Same and general legal distinction between compli- have not sufficiency, factual courts While we have used the two standards listing the by several cated distinction scope interchangeably for the of review scope of exceptions in which the review—(cid:127) years contexts, many many different arguments they may several not not suggest though are the standard review— the same. overlap. First, the courts of often appeals use Second, it ex- argued has been two standards illustrations the differ- an important prophy- clusive “is standard legal sufficiency, ence between and factual jury’s against prov- lactic” invasion of the

with the exclusive tied standard to ince, appellate judges likely are less and former the inclusive standard to the contrary they consider evidence when latter: not if the standard is should exclusive [reviewing] legal sufficiency, When true, if that is the opposite used.133 But only consider infer- evidence and appellate should also courts be case— to support ences tend the award of likely are less to consider evi- damages disregard and all and evidence (as in Part dence when shown contrary.... inferences When II) if the exclusive standard used. No sufficiency, we review factual we consid- used, appellate matter which standard is and weigh er all the evidence will and courts must take care not to consider or set aside the so verdict it is against great weight and too little or too much. preponder- Reeves, 149-50, Estate, 662, 660, King’s U.S. 244 at 120 S.Ct. 150 (citations omitted). (1951) curiam) (holding (per court of failing distinguish appeals erred in between 161, & 131. Carter v. Steverson 106 S.W.3d sufficiency by and review factual 2003, (Tex.App.-Houston pet. Dist.] [1st conducting weighing all the evidence when denied) added) (citation omitted); (emphasis latter). 64, (Tex. Long Long, accord v. 144 S.W.3d pet.); App.-El no v. Paso Gore Scotland Walls, Royalty Co. 132. Burk v. Inc., Golf, (Tex.App.-San 1981) (Tex. (noting that review denied); pet. Corp. v. Antonio Exxon gross by considering negligence finding all Ltd., (Tex.App.- Breezevale appeared did not conflict to but Lines, denied); pet. Dallas N. Am. Van test). with traditional no-evidence Emmons, Inc. 113 n. denied); (Tex.App.-Beaumont pet. Moli- 1503; Dorsaneo, Moore, supra at see note (Tex.App.- na (argu- Stores, Hardberger, supra also note pet.); Amarillo no Wal-Mart Inc. Itz, "designed afford (Tex.App.- exclusive standard is 470 n. verdicts”). denied); pet. high Austin see In re also deference Conversely, several appear jury, factors to fa- supreme intermediate and court. application vor contrast, inclusive standard. By the inclusive is help- standard First, when we have said “we must look do, recognizing actually ful in what courts only at that sup- evidence which tends to and must seen to impor- be do. Both are port the judgment,”134 we could not have tant; choosing we should avoid between speaking literally; glasses been no filter them if we can. evidence, judges cannot abandon such Conclusion; judgments to law clerks litigants. or It is E. The Standards say often hard to whether evidence does or Are The Same support does not a verdict —the same facts As both the inclusive and exclusive stan- conclusions,135 support different scope legal-sufficiency dards for the re- may support part one of a verdict but not Texas, long history view have a as both another.136 Nor can supporting have been used in other contexts to review verdict be party identified which of- motions, matter-of-law as the federal fered parties depend on admissions it— courts have decided the differences be- during cross-examination their oppo- tween the two are more semantic than case, nent’s and minimize damaging evi- real, properly and as applied both— —must by presenting dence it during their own. result, arrive at the same no we see com- matter, practical As a cannot begin a court pelling among reason to choose them. say to what evidence supports a verdict without it all. course, key qualifier, The of is “properly applied.” The final legal test for Second, an appellate court begins that sufficiency always be whether the by disregarding one party’s evidence at trial would enable reasonable many strike citizens as extending some- and people fair-minded to reach the ver thing justice less than for all. Concerns dict under review. a reviewing Whether open government about and open courts by court begins considering all the evi suggest an appellate process that consid- only dence or supporting the evidence the evidence, ers all the though deferring to verdict, legal-sufficiency review in the jury’s the verdict. While there is some proper light must credit favorable evidence dispute Lady whether Justice should wear could, jurors reasonable and disregard blindfold,137 a metaphor the surely jurors evidence unless reasonable never suggest justice intended to that dis- could not. regards the facts. sum,

In the exclusive standard is helpful judges lawyers While disagree often in recognizing the judge cases, distinctive roles of about legal sufficiency particular in See, (Tex. Stores, Biggar, 134. State v. e.g., Wal-Mart Inc. v. Alexan- 1994). der, (Tex.1993) (noting single previous evidence of minor stumble See, Homes, Daenen, e.g., CMH supported negligence finding gross but not (Tex.2000) (noting plaintiff negligence). argued frequent inspections defendant's knowledge danger, stairs showed of inherent Resnik, Managerial Judges, 137. See Judith opposite while court held it showed the (1982) (noting Harv. L.R. that inspections nothing); found State Fire Farm images justice appeared blindfolded Simmons, & Cas. Co. v. years). within the last four hundred (Tex. 1998) (affirming bad-faith verdict after noting insurer’s reasons for denial were con tradictory). disagreements long always

the are almost about sis. As Justice Frankfurter stated ago: what evidence can must credit they

and what inferences can or must judge a Only incompetent or wilful make. It in human is inevitable affairs jury would take a case from the when people reasonable sometimes dis- to the But jury. the issue should be left agree; thus, it is also inevitable that questions negligencé since are ques- disagree will sometimes about what rea- very degree, tions of often nice differ- disagree can This people sonable about. is judges competence ences of degree, problem; not a new Justice Calvert noted past, in and will have the and conscience fifty years ago: almost in future, disagree proof whether a to case is sufficient demand submission generally The rule as is that if stated thinks jury. to The fact that [one] minds from reasonable cannot differ to to leave the case enough there was proba- conclusion that evidence lacks other indicate jury does not tive force it will be held be the jury’s function. unmindful [is] equivalent applica- of no evidence. The out for a trial easy way timid but tion of rule lead strange can jury tried a all cases judge is leave theoretically possible, results. It is determination, doing so jury fact, far sometimes not from actual a from duty he take case fails his Supreme five will members Court would the evidence when supporting conclude that the evidence a judge, A it. timid warrant verdict finding vital has probative of a fact no intrinsically judge, like biased force, reaching conclusion judge.140 lawless through application rule will thus hold, effect, trial judge that the who Application V. to Facts the overruled motion for instructed ver- review dict, apply scope It remains the of jurors the twelve who found the fact, presented. to the facts jus- existence of the vital three the of Appeals tices the Court of Civil who appeals of majority A of the court point overruled a “no of evidence” error Wilsons, for find affirmed the verdict the justices four dissenting of the Su- City that the ing legally sufficient evidence preme Court are not men138of “reason- the flooding knew on Wilsons’ increased able minds.”139 property substantially certain to occ was occasionally not follow majority pointed It hubris that re- ur.141 The the quires ing proof. First, expert testi appellate court find the Wilsons’ evidentiary plan verdict has no ba- fied that the was certain reasonable revised Appellate in Tex- 138.Justice Calvert's use of masculine in ment Intennediate Courts as, (2004); may L. perhaps forgiven, although be 46 S. Robert L.Rev. There, Ward, Hennenberg, Dabney, Jr. WeWere Houston B.J. Nov.- Hortense and Ruth Hattie temporarily Dee. Brazzil served on this Court in Hughes appointed and Sarah T. was Calvert, later, judge years supra note at 364. a state was district ten it not until 1954 that Texas Constitution was jurors, McCarthy, allow 140. Wilkerson v. 336 U.S. amended to women to serve as (Frankfurt- (1949) Mary not 69 S.Ct. 93 L.Ed. 497 until 1973 that Lou Robinson er, J., concurring). as a became the first women serve state appellate judge. See James T. ''Jim” Worth- en, Organizational Develop- The & Structural 141. 86 S.W.3d Second, flooding.142 City create firm flooding. as the ad- downstream The same mittedly original knew that in- Plan development up would drew Master certified one; crease runoff City and the Sebastian ditch the revised unless the had some Wilsons, would channel it reason to know the first toward the so it certification was (of certainty” knew “with absolute true and the second one was false that flood- evidence), Third, would be the which there was no there was City result.143 jurors logical one inference could explain” why “did not the Master Plan draw. required a drainage ditch across the Wil- property not, sons’ but plan the revised did by None of the evidence cited the court thus allowing City to infer that the appeals City showed the knew more

knew this omission would flooding.144 cause than it by engineers. was told expert flooding Wilsons’ testified that was course, City Of did explain (in inevitable, opinion) his but that the why approved plan the new —because City knew it was inevitable. The Wilsons’ engineers three sets of said the omitted expert gave opinion point. no on the latter ditch unnecessary was the court felt —but Second, ending neighbor’s a ditch at a compelled by the scope review to disre property line evidence that be a de- gard that evidence. substantially fendant was certain of the For earlier, several of the reasons stated cases, result in some but not the context we believe court appeals did not City this one. witnesses admitted properly apply scope of review. The knowing development would increase run- critical question in this City’s case was the off at drainage system, the head of this state of mind —the prove Wilsons had to not flooding Calculating at its foot. (not known) City knew should have ponds effect of detention absorption flooding substantially A certain. grassy drainage forty-five ditch feet wide reviewing court cannot evaluate what the yards and over two hundred long required knew disregarding most of what it formulas, hydrological models, computer was told. and mathematical calculations. The omis- sion of the ditch prop- across the Wilsons’ Moreover, when a case involves erty obviously raised concerns that the scientific or technical issues requiring ex City investigated, but was no evidence that (as pert does), advice this jurors one can City the knew the advice it received in party’s not reliance on experts response wrong. was very hired for that purpose without some evidence supplying a reasonable basis for also point Wilsons to a letter Sebas- Here, doing so.145 it was attorney uncontroverted tian’s City demanding wrote the that engineers three sets of indemnity certified that in case the new ditch flooded plans the revised City’s met the codes and attorneys the But protect Wilsons. regulations thus would not increase potential liability client from whether it is —and 142. Id. at did not foreclose bad-faith claim because "presented claimant evidence from which 143. Id. at 705. logically Haag’s fact-finder could infer that reports objectively prepared, were not that Id. 704-05. Haag's State Farm was aware of ob lack of Castañeda, 145. Provident Am. Ins. Co. v. jectivity, that and State Farm’s reliance on see also State reports merely pretextual.”). the was Nicolau, Lloyds Farm (Tex. 1997) (holding expert report reliance on City justly certainly the knew that imagined so. In the While fact

real or —and started, letter, purports flooding to be after the the Wilsons nev- attorney the never jury any cite er or submitted to the expert hydrology, opinions pleaded an or the City’s other takings theory letter have than the initial anyone of who was. This approval. investigate, again the required City to no evidence it knew the it re- advice Crediting all favorable evidence that wrong.146 ceived was jurors reasonable could believe disre- colleagues believe rea- concurring Our except that garding all evidence jurors could nevertheless disre- sonable not hold there they ignore, which could we all gard engineers what the certified be- City’s approval the was no evidence City cause the a financial incentive to had drainage plan was intentional revised pay them rather than the believe Wilsons. taking. course, have a in- Of defendants financial court of Accordingly, ap- we reverse the damages every paying centive to avoid City against the under peals’ judgment case; if that alone is incentive some evi- I, the Texas Constitu- article section of liability, plaintiffs then create dence appeals de- Because the court tion. every enough go jury evidence to jury’s alternate ver- to address the clined file

time suit. a claim under the dict for the Wilsons on ignores more this what important, But Code, remand case to Texas Water prove that the Wilsons had to —not to determine that issue. that court City might engineers’ disbelieved have requires reports, but that it did. This concurring filed a Justice O’NEILL “objective indicia of intent” evidence joined. opinion in which Justice MEDINA knew harm showing City identifiable substantially occurring certain to participate not JOHNSON did Justice engi- doubts about the result.147 Jurors’ the decision. reports City’s could

neers’ or the motives O’NEILL, joined by Justice Justice supply objective that them with indicia (cid:127) MEDINA, concurring. flooding knew would occur. Con- about the roles of stitutional concerns job of ex- does an excellent The Court make judge and do not allow either to appropriate scope no-evi- plaining the up. such evidence court “must dence review: favorable to the evidence agree appeals with the court view We verdict, crediting presented some favorable the Wilsons could, disregarding City damaged property, their reasonable evidence unless reasonable drawing up approving drainage I agree public purpose. it for a could not.” plans acting was join I standard and Parts missing piece in the evidence here is with this The I opinion. the But plans ap- through the it IV of Court’s City that the knew proof the V, substantially join to in- Part because Court certain cannot proved were carefully it so standard that flooding properties. misapplies the crease on the Wilsons’ Gragg, Armstrong, Reg’l Dist. Ltd. v. 147. Tarrant Water Nissan Motor Co. Cf. (Tex.2004) (holding (emphasis add- may require complaint manufacturer letters ed). investigate, are not evidence com- to but true). plaints are articulates crediting jury cordingly, judg- evidence the I concur in the Court’s reasonably disregard. could ment not reasoning. its City The Drainage Keller’s Master I required part

Plan it in condemn 2.8- drainage acre easement on the Wilson Questions generaby proved intent are property for construction of an earthen evidence; only by circumstantial as the forty-five channel feet wide and five feet noted, appeals aptly court of this case deep that would funnel water from the rarely “defendants knowing will admit to a adjoining Sebastian property over the Wil- certainty given substantial results property son into the Little Bear Creek actions,” would follow from their City Watershed. The proceed chose jury therefore the must be “free to dis- portion plan, with this of the though, protestations credit defendants’ that no claiming rebanee on engineers’ assurances harm was intended and to draw inferences that the developers’ installation of reten- necessary to establish intent.” 86 S.W.3d tion ponds neighboring pre- land could 693, 704. I agree with the Court that the flooding. vent drainage channel that jury’s abibty to City’s pro- disbelieve the actually was built ended at the edge the testations is not itself “evidence of liabili- Sebastian property and funneled water di- ty.” Instead, 168 S.W.3d at 830. the rectly land, onto the Wilsons’ destroying jury’s abibty weigh the witnesses’ credi- eight acres of farmland worth almost bihty City’s means that the testimony did $300,000. The Court holds that jury the not conclusively establish its lack of liabili- required was City’s believe the testimo- ty. Because babibty conclusively is not ny that it rebed on engineers’ assur- negated, we must examine the record to ances and thus did flooding not know was legally see if there is sufficient evidence substantially occur, certain to stating that from jury which the could infer that the when requires a case expert testimony “ju- City flooding substantiaby knew was cer- disregard rors cannot party’s reliance on tain to I occur. would hold that evi- experts hired for very purpose with- presented dence intent that was in this out some supplying a reasonable case jury abowed the to draw such an doing basis for so.” 168 S.W.3d at 829. inference. Even this were an appropriate review trial, presented At the Wilsons standard —which hasn’t been until to- City independent that the had sources of day jury bebeve the had a reasonable —I knowledge flooding substantiaby was upon basis City’s which to First, certain to occur. demonstrated reliance; professed City had a finan- developers’ plan that the itself was flawed. cial incentive to knowledge disclaim Rather than incorporate drainage ditch flooding, presented and the Wilsons some running property, across the Wbson as the evidence that independent had City’s Master Plan required, develop- knowledge flooding substantially was cer- plan view, drainage abrupt- tain to In ers’ ended the ditch my occur. ly at proper weigh edge property. the Wilson body the witnesses’ credibility expert The Wilsons’ disputed resolve these fact testified that plan’s issues. I agree implementation necessarily nevertheless that would City the cannot be liable for a “increase the taking this case volume and flow of water because I city’s property bebeve that a mere act of across the Wbson from the rate approving private development fifty-five a plan per ninety- can- of cubic feet second to taking not constitute a Ac- pubbe per use. three cubic feet second.” 86 at S.W.3d that of McGalliard ny experts.” that over Second, City aware the Kuhlmann, property the flowed across Wilson S.W.2d water commenced, and, omitted). (citations development the before out, pointed the appeals as the court states, jurors are itself As the Court admitted City’s Director of Public Works testimony undisputed to credit required development would City that the knew the direct, “clear, oth- positive, it only when velocity; flow and increase the water’s credible, contradictions from free erwise City that “the he testified specifically, inconsistencies, could have been and would be ab- upstream the water knew at readily controverted.” faster due less and would flow sorbed not meet this testimony does City’s The vegetation from of trees and the removal testify did City Manager standard. forty-five- from the developments the approved not have City at that “would channel” that ended foot-wide earthen Id. at 705. assured edge. was] unless property’s developments [it the Wilson City evidence that the Finally, there was not increase developments did that the warning develop- that the received a letter water” onto flow of velocity of water or the subject proper- plan would Wilson ers’ property. neighboring ty flooding. whether disputed But the Wilsons credible, City’s protestations were there is some

While I believe powerful a City had that the flooding pointing was substan- out City that the knew occur, knowledge there is also some lack of tially profess certain to incentive officials it did not. assur- evidence that engineers’ on the through reliance represen- that relied on the testified the con- avoid it would then ances because them re- assured engineers tations of who compensating expense siderable for a drain- could substitute ponds tention other- that would property for the Wilsons property age easement and Wilson under the Mas- condemned wise have been accept- jury If the damaged. not be would id. at 705. Drainage Plan. See ter true, agree I that the ed this evidence Moreover, conclusion the Court’s negated, which would be intent element reliance party’s juries cannot liability. City’s takings preclude the would consistent with is not expert opinions that the was bound agree But I do not cites two The Court jurisprudence. true. our City’s testimony as accept sup “may but neither proposition, itself notes cases for this The Court instead, both and disbe- analysis; one witness ports choose believe the Court’s “[cjourts another,” and that jury, lieve that the support the conclusion cases to the in a favorable the evidence all fact, appropriately should as the finder of jurors credited thus assume verdict par regarding disputes factual resolve verdict and dis- testimony favorable to the Provident experts. reliance on hired ty’s it.” 168 testimony contrary to believed Am. Ins. Co. Castañeda mirrors at 819. This statement Farm State 189, 194-95 long which has jurisprudence, prior our 444, 448-50 Nicolau, 951 Lloyds v. jury “has several alterna- that a provided (Tex.1997). with con- presented when tives available Castañeda, insurance a bad-faith In “may believe because flicting evidence” insur- that the case, question there was no others,” “may and disbelieve one witness expert’s assurances on an er had relied testimony of in the inconsistencies resolve whether dispute about and thus no witness,” testimo- “may accept lay any jury disregarded could have that evidence. II Castañeda, 988 S.W.2d at 194-95. In that Although disagree I with the Court’s case, performed we traditional suf- jury required that conclusion the was ficiency analysis and concluded there was I City’s testimony, agree credit the with its no evidence that the defendant acted because, City’s in the judgment favor bad faith. Id. at 194. did state that We view, my City’s approval the mere expert’s reliance on an opinion will not private development plans did not result preclude finding of bad faith the ex- use, a taking public as the constitution pert’s opinion was “unreliable and the in- al requires compensable standard for a surer knew or should have known that to I, taking. § City Const. art. 17. The Tex. However, be the case.” Id. we did not appropriate regulate did not or even the jury hold that party’s the must credit a land, use of the nor it design Wilsons’ did testimony expert. relied on an drainage plan proposed for the subdivi Instead, City merely sions. Nicolau, approved

We reiterated point this an plans designed by private subdivision de There, other bad-faith insurance case. velopers, and that design included inade Court noted “we have never held that the quate drainage ar capabilities. City mere fact that an upon insurer relies gues, agree, and I approval its mere expert’s report deny a claim automati private plans responsi did not transfer cally forecloses faith recovery bad as a bility plans for the content of those law,” from matter of and again concluded that developers City. to the purported Municipalities upon “reliance an expert’s re plats review alone, subdivision “to ensure that port, standing will not necessarily safely subdivisions are constructed and to shield” the liability. defendant from Nico lau, promote orderly development of the at 448. The Court con “[wjere community.” City Round Rock v. ceded that we the trier of fact in Smith, case, see this well have concluded that § Tex. Loo. Gov’t Code 212.002. Such a faith,” [the did not act in insurer] bad protect review is intended to city’s concluded that the “determination is not residents; it is not intended to transfer ours to make” because “the Constitution responsibility for a flawed subdivision de- jury allocates that task to the prohib from sign developers municipali- to the its us reweighing from the evidence.” Id. See, ty. Rock, e.g., City Round at (citing I, § Const. art. art. 302; Inv., see also V, 6,10). Cootey §§ v. Sun Inc., 68 Haw. 718 P.2d The same is true in this case. The (1986) (holding permit process “[t]he was not required to believe that the County which the approves disap- did flooding not know substantially proves development of a proposed sub- certain to occur because it relied assur by government division reflects an effort ances to the contrary; as a require developer to meet his re- Court, we should “assume that cred sponsibilities rules, under the subdivision testimony ited favorable the verdict and laws,” regulations, and and that pri- “the testimony contrary disbelieved to it.” 168 mary responsibility providing an ade- credibility S.W.3d at 819. Such determi quate development and safe rests ... with uniquely nations are suited and constitu developer, County”). and not with the tionally committed the fact finder. See I, V, 6; § § Tex. Const. art. art. see primary responsibility Because the for a Nicolau, also 951 S.W.2d at 450. development’s design rests with the devel- plat-approval County and “not of the

oper, pro- flooding because the was the result does not cess transfer such or their of responsibility appropriating regulating use municipality, plat land,” to the mere approval the fact that a and held “[t]he upon cannot be a which to predicate basis and county regulates development requires takings liability. that, have held to be We drainage compliance with road and restric- entity a taking, governmental liable for a private develop- not a tions does transform “perform acts in certain the exercise Id. The public project.” ment into a court authority of its lawful ... which resulted use regula- concluded that because “land taking damaging the or of plaintiffs’ plaintiffs’] tion not property of did [the property, and acts proxi- which were the damages, cause the no inverse condemna- of taking mate cause or damaging the persuaded by tion involved.” I am was Id. Hale, property.” such State Phillips the of the reasoning courts (1941) (emphasis Pepper, similarly and would conclude that added). case, In flooding this resulted the case City’s plat approval in this did from the defective de- developers’ drainage taking an as a amount to unconstitutional sign, City’s approval not from the the matter of law. thus, plat; City’s approval the was not the appeals in this case ad- The court of proximate damage cause of the to the Wil- affirming for reason vanced an alternative property. son suggesting that judgment, the trial court’s facts, courts, Other faced with similar City not be liable for even if the could governmental have also concluded that a plat,' it merely a subdivision approving entity cannot a taking be liable for when failing for could held liable nevertheless be action approve its is to a private drainage condemn a easement across development plan. Phillips King See the at 707. property. Wilson County, 136 Wash.2d P.2d City that “the appeals court of stated (1998); see Pepper also J.J. Wel- any chose not to condemn Wilson Wash.App. come Constr. the property,” but instead water “allow[ed] P.2d In the Phillips, the flowing from Sebastian easement Washington Supreme Court observed uncontrolled, the discharge, across Wilson public aspect private there is no to a devel- above, however, property.” Id. As noted opment county concluded that the “[i]f developers’ City’s the plan the city or were the —-not negligence liable for the water to flood actions—-that allowed private developer, approval based under the property. City’s Because Wilson existing regulations, municipali- then the flooding, I action did not cause the dis- ties, ultimately taxpayers, would agree City’s that the to condemn an failure guarantors become insurers for takings liability. easement is relevant private developers actions whose devel- If were for the flood- responsible damages opment neighboring properties.” chose not to the property, condemn Phillips, 968 P.2d at 878. The court subject it might be to inverse-condemna- Pepper similarly an con- examined inverse County liability. Reg’l tion See Tarrant upon county’s demnation claim based Gragg, Water Dist. v. private approval developments with de- (Tex.2004) (‘When it, too, takes drainage government plans; fective concluded it, private paying county’s property did without first for approval not cause damages in- owner recover flooding the resultant and did not result However, condemnation.”). if gov- taking. 871 verse Pepper, unconstitutional entity’s are not P.2d at 606. The court noted that ernmental actions “proximate cause of taking damag- or

ing” property, of the entity COMPANY, then the can- TRUST STERLING Hale, not be liable for a taking. Petitioner, S.W.2d at 736. Accordingly, entity need not condemn property merely be- private entity cause a causing damage. is ADDERLEY, Roderick et This rule does not leave owners of flooded al., Respondents.

property remedy; without a pri- when a land, vate development floods neighboring No. 03-1001. damaged the owner of the property will Supreme Court of Texas. ordinarily have against recourse pri- parties causing vate the damage. See Tex. Argued Sept. (b) 11.086(a), § (providing WateR Code person may that “[n]o divert or impound Decided June the natural flow of surface waters this Rehearing Aug. Denied state ... in a manner damages property of by another the overflow of the

water diverted or impounded” and that person property injured

“[a] whose by

an overflow of water by caused an unlawful

diversion impounding has remedies at equity

law and in recover dam- overflow”).

ages occasioned Be-

cause the developers’ design plat— City’s

not the approval the flood- —caused case, damage this I would hold that City cannot be held liable for an un- taking I,

constitutional under Article Sec-

tion 17 of the Texas Constitution.

Ill I

Because believe the Court to give fails regard

due jury’s right to make

credibility determinations, join I cannot

Part ofV the Court’s opinion. But be-

cause I City’s conclude that the mere act approving a private development plan

did not cause the property Wilson to be

“taken, damaged or destroyed ap- for or Const, use,”

plied public I, art.

§ I agree that the cannot be held taking

liable for a According- this case.

ly, I concur in the Court’s judgment.

Case Details

Case Name: City of Keller v. Wilson

Court Name: Texas Supreme Court

Date Published: Jun 10, 2005

Citation: 168 S.W.3d 802

Docket Number: 02-1012

Court Abbreviation: Tex.