the City of Keller v. John W. Wilson, Grace S. Wilson, Johnny L. Wilson and Nancy A. Wilson

IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF

TEXAS

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No. 02-1012

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The

City of

Keller ,

Petitioner

v.

John W. Wilson, Grace S.

Wilson, Johnny L. Wilson and

Nancy A. Wilson,

Respondents

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On Petition for Review from

the

Court of Appeals for the Second District of

Texas

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Argued

October 19,

2004

Justice Brister delivered

the opinion of the Court, in which Chief

Justice Jefferson , Justice

Hecht , Justice Wainwright ,

and Justice Green joined, and in

which Justice O’Neill and Justice Medina joined as to Parts I

through IV.

Justice O’Neill filed a concurring

opinion in which Justice Medina

joined.

Justice Johnson did not participate in

the decision.

Must an

appellate court reviewing a verdict for legal sufficiency start by considering

all the evidence or only part? Over the years, we have stated both as the proper

scope of review. While some see the standards as opposing, we disagree; like a

glass that is half-full or half-empty, both arrive at the same point regardless

of where they start.

But both

standards must be properly applied. Rules and reason sometimes compel that

evidence must be credited or discarded whether it supports a verdict or

contradicts it. Under either scope of review, appellate courts must view the

evidence in the light favorable to the verdict, crediting favorable evidence if

reasonable jurors could, and disregarding contrary evidence unless reasonable

jurors could not. As we find the evidence here meets neither standard, we

reverse.

I. Factual and Procedural History

The City of

Keller is one of several

fast-growing communities on the outskirts of Fort

Worth. [1]

As part of that growth, the City approved plans for two new subdivisions,

Estates of Oak Run and Rancho Serena, including plans for storm water drainage.

The

Wilsons

own property southeast of the new subdivisions, with a tract owned by Z.T.

Sebastian lying between. Before development, surface water flowed generally

north to south from the land where the subdivisions were built, across the

Sebastian and Wilson properties, and into the Little Bear Creek Watershed.

In 1991, the

City adopted a Master Drainage Plan providing for drainage easements across both

the Sebastian and Wilson properties, and thence into Little Bear Creek. The

City’s codes require developers to comply with the Master Plan, to provide

drainage for a 100‑year rain event, and to avoid increasing the volume or

velocity of water discharged upon downhill properties.

The

developers of Oak Run and Rancho Serena submitted plans to the City indicating

they would buy a drainage easement and build a ditch forty-five feet wide and

more than two hundred yards long across the Sebastian property, and deed both to

the City upon completion. [2]

The plans also included detention basins on the subdivision properties, but

omitted any drainage easement or ditch across the Wilsons ’ property. The City’s

director of public works approved the developers’ plans, and the City accepted

the works on completion.

In accordance

with the Master Plan, the City built a box culvert south of the

Wilsons ’

property. But as the developers’ drainage ditch ended at the

Wilsons ’

north property line, there was no link between the two. The

Wilsons

alleged and the jury found this omission increased flooding on the

Wilsons ’

property, ruining eight acres of farmland the jury valued at almost

$300,000.

To recover

damages for inverse condemnation, the Wilsons had to prove the City

intentionally took or damaged their property for public use, or was

substantially certain that would be the result. [3]

They do not allege the City intentionally flooded their land, but do allege it

approved revised plans that it knew were substantially certain to have that

effect.

The City

contends no evidence supports the jury’s finding of an intentional taking. It

presented evidence that engineers for the developers, for the City, and for an

outside firm the City retained all certified that the revised drainage plan

complied with the City’s codes and regulations C

including the ban against increasing downstream runoff. Thus, the City asserts

it had no reason to be substantially certain the opposite would occur, until it

did.

A divided

court of appeals rejected this contention. [4]

In its legal sufficiency review, the court refused to consider the various

engineers’ certifications because “we are to consider only the evidence and

inferences that tend to support the finding and disregard all evidence and

inferences to the contrary.” [5]

The City challenges this omission as applying the wrong scope of review.

We have on

many occasions stated the scope of review precisely as the court of appeals says

(the “exclusive” standard). [6]

But we have also stated that a reviewing court must consider “ all of the

evidence” in the light favorable to the verdict (the “inclusive” standard). [7]

Sometimes we have mentioned neither reviewing all evidence nor disregarding some

part of it. [8]

Finally, we have sometimes expressly mentioned both. [9]

Although this

Court has used both the exclusive and the inclusive standards interchangeably

over the years, commentators say the two are different. [10]

Because this important issue is dispositive here, we

address it in some detail, and reserve for another day the City’s arguments that

a governmental entity cannot be liable for approving a developer’s plans, or

accepting rather than constructing the works at issue.

II. Contrary Evidence That Cannot Be

Disregarded

The question

presented here is not a new one. More than 40 years ago, then Justice Calvert [11]

addressed the standards for reviewing legal and factual sufficiency in the

most-cited law review article in

Texas legal history. [12]

Frustrated that despite this Court’s efforts to explain those standards “a

growing number of recent decisions indicate a continuing misunderstanding,” [13]

the author summarized and attempted to clarify

Texas law up to 1960. [14]

The article’s impact remains substantial today, having been cited more than 100

times by Texas courts in the last

five years.

According to

the article:

“No

evidence” points must, and may only, be sustained when the record discloses one

of the following situations: (a) a complete absence of evidence of a vital fact;

(b) the court is barred by rules of law or of evidence from giving weight to the

only evidence offered to prove a vital fact; (c) the evidence offered to prove a

vital fact is no more than a mere scintilla; (d) the evidence establishes

conclusively the opposite of the vital fact. [15]

We have quoted

a similar formulation on many occasions. [16]

Notably,

Justice Calvert then proceeded to put the question before us in the proper

context:

It is in

deciding “no evidence” points in situation (c) that the courts follow the

further rule of viewing the evidence in its most favorable light in support of

the finding of the vital fact, considering only the evidence and the inferences

which support the finding and rejecting the evidence and the inferences which

are contrary to the finding. [17]

Clearly,

the traditional rule in Texas has

never been that appellate courts must reject contrary evidence in every

no-evidence review. Instead, the traditional scope of review does not disregard

contrary evidence if there is no favorable evidence (situation (a) above), or if

contrary evidence renders supporting evidence incompetent (situation (b) above)

or conclusively establishes the opposite (situation (d) above).

As

the following examples show, this has remained the rule since. We do not presume

to categorize all circumstances in which contrary evidence must be considered in

a legal sufficiency review. Evidence can be disregarded whenever reasonable

jurors could do so, [18]

an inquiry that is necessarily fact-specific. But it is important that when

courts use the exclusive standard and disregard contrary evidence, they must

recognize certain exceptions to it.

A. Contextual Evidence

In

Justice Calvert’s first situation C

a complete absence of evidence of a vital fact C

it is generally irrelevant whether a reviewing court considers contrary

evidence. [19]

If supporting evidence is absent, opposing evidence cannot change that result.

But in a number of cases, the lack of supporting evidence may not appear until

all the evidence is reviewed in context.

For

example, publications alleged to be defamatory must be viewed as a whole C

including accompanying statements, headlines, pictures, and the general tenor

and reputation of the source itself. [20]

A court reviewing legal sufficiency cannot disregard parts of a publication,

considering only false statements to support a plaintiff’s verdict or only true

ones to support a defense verdict. [21]

Similarly,

reviewing courts must construe contracts as a whole; we do not consider only the

parts favoring one party and disregard the remainder, as that would render the

latter meaningless. [22]

Even writings executed at different times must be considered together if they

pertain to the same transaction. [23]

It

is not just writings that reviewing courts must consider in context. For

example, in reviewing intentional infliction of emotional distress claims for

legal sufficiency, “we consider the context and the relationship between the

parties.” [24]

Acts that might constitute outrageous conduct when dealing with a

hearing-impaired consumer [25]

may be legally insufficient between business parties. [26]

In our no-evidence reviews of successful claims, we have invariably reviewed not

just evidence showing the conduct was outrageous, but also evidence showing

that, in context, it was not. [27]

More

generally, evidence cannot be taken out of context in a way that makes it seem

to support a verdict when in fact it never did. [28]

If a witness’s statement “I did not do that” is contrary to the jury’s verdict,

a reviewing court may need to disregard the whole statement, but cannot rewrite

it by disregarding the middle word alone.

Thus,

if evidence may be legally sufficient in one context but insufficient in

another, the context cannot be disregarded even if that means rendering judgment

contrary to the jury’s verdict. Either “evidence contrary to the verdict” must

be defined to exclude material contextual evidence, or it must be an exception

to the general rule.

B. Competency Evidence

It

has long been the rule in Texas

that incompetent evidence is legally insufficient to support a judgment, even if

admitted without objection. [29]

Thus, evidence showing it to be incompetent cannot be disregarded, even if the

result is contrary to the verdict. If the rule were otherwise, incompetent

evidence would always be legally sufficient, because the evidence showing

it to be incompetent could never be considered.

Thus,

for example, if an eyewitness’s location renders a clear view of an accident

“physically impossible,” it is no evidence of what occurred, even if the

eyewitness thinks otherwise. [30]

Similarly, an employee’s testimony that he was in the course and scope of his

employment is legally insufficient to support a verdict against his employer if

the evidence shows that legal conclusion to be incompetent. [31]

This

exception frequently applies to expert testimony. When expert testimony is

required, lay evidence supporting liability is legally insufficient. [32]

In such cases, a no-evidence review cannot disregard contrary evidence showing

the witness was unqualified to give an opinion. [33]

And if an expert’s opinion is based on certain assumptions about the facts, we

cannot disregard evidence showing those assumptions were unfounded. [34]

After

we adopted gate-keeping standards for expert testimony, [35]

evidence that failed to meet reliability standards was rendered not only

inadmissible but incompetent as well. [36]

Thus, an appellate court conducting a no-evidence review cannot consider only an

expert’s bare opinion, but must also consider contrary evidence showing it has

no scientific basis. [37]

Similarly, review of an expert’s damage estimates cannot disregard the expert’s

admission on cross-examination that none can be verified. [38]

Thus,

evidence that might be “some evidence” when considered in isolation is

nevertheless rendered “no evidence” when contrary evidence shows it to be

incompetent. Again, such evidence cannot be disregarded; it must be an exception

either to the exclusive standard of review or to the definition of contrary

evidence.

C. Circumstantial Equal Evidence

As

noted above, Justice Calvert believed the exclusive standard applied only when a

no-evidence challenge asserted the evidence was no more than a scintilla. [39]

But he went on to note a “variation” that required contrary inferences to be

considered when the equal-inference rule applied. [40]

In

claims or defenses supported only by meager circumstantial evidence, the

evidence does not rise above a scintilla (and thus is legally insufficient) if

jurors would have to guess whether a vital fact exists. [41]

“When the circumstances are equally consistent with either of two facts, neither

fact may be inferred.” [42]

In such cases, we must “view each piece of circumstantial evidence, not in

isolation, but in light of all the known circumstances.” [43]

Justice

Calvert argued there was “no necessity for the variation” because drawing an

inference based on meager evidence was unreasonable whether or not the reviewing

court considered the opposing inferences. [44]

Nevertheless, he recognized that “[t]he opposing inference is present and it

does no harm to note its presence.” [45]

In

subsequent cases this Court has continued to note rather than disregard the

presence of equal but opposite inferences, often because lower courts have

overlooked them. Thus, for example, one might infer from cart tracks in spilled

macaroni salad that it had been on the floor a long time, but one might also

infer the opposite C

that a sloppy shopper recently did both. [46]

Similarly, when injury or death occurs without eyewitnesses and only meager

circumstantial evidence suggests what happened, we cannot disregard other meager

evidence of equally likely causes. [47]

Thus,

when the circumstantial evidence of a vital fact is meager, a reviewing court

must consider not just favorable but all the circumstantial evidence, and

competing inferences as well.

D. Conclusive Evidence

Next,

Justice Calvert noted that Texas

courts conducting a no-evidence review traditionally do not disregard contrary

evidence that conclusively establishes the opposite of a vital fact. [48]

He argued that this is to some extent not a “true” no-evidence claim, as

proponents may have to show not only that no evidence supports the verdict but

that the opposite was proved as a matter of law. [49]

There are several types of conclusive evidence. First, an appellate court

conducting a legal sufficiency review cannot “disregard undisputed evidence that

allows of only one logical inference.” [50]

By definition, such evidence can be viewed in only one light, and reasonable

jurors can reach only one conclusion from it. Jurors are not free to reach a

verdict contrary to such evidence; [51]

indeed, uncontroverted issues need not be submitted to

a jury at all. [52]

Reviewing

legal sufficiency in such cases encompasses a general no-evidence review,

because if some evidence supports the verdict then the contrary evidence was not

“undisputed.” But the review does not stop there; the evidence must also have

only one logical inference. Undisputed evidence that reasonable jurors could

disbelieve has two: (1) it is true, or (2) it is not.

Most

often, undisputed contrary evidence becomes conclusive (and thus cannot be

disregarded) when it concerns physical facts that cannot be denied. Thus, no

evidence supports an impaired-access claim if it is undisputed that access

remains along 90 percent of a tract’s frontage. [53]

Evidence that a buyer believed a product had been repaired is conclusively

negated by an accompanying letter to the contrary. [54]

And an insured’s liability has not been determined by an “actual trial” if the

insured did not appear, present evidence, or challenge anything presented by his

opponent. [55]

Undisputed

contrary evidence may also become conclusive when a party admits it is true.

Thus, a claimant’s admission that he was aware of a dangerous premises condition

is conclusive evidence he needed no warning about it. [56]

Similarly, an ex-employee’s admission that she obtained other employment may

prove conclusively that she did not detrimentally rely on a defendant’s promise

to re-hire her. [57]

And jurors may not find that an indictment was based on a defendant’s misleading

report when the district attorney admits it was his own mistake. [58]

It

is impossible to define precisely when undisputed evidence becomes conclusive.

For example, an injured employee’s return to work may prove conclusively that an

injury was not total, [59]

or it may not. [60]

Circumstances in which a body is found may conclusively establish suicide, [61]

or allow jurors to infer otherwise. [62]

Evidence is conclusive only if reasonable people could not differ in their

conclusions, [63]

a matter that depends on the facts of each case.

There

is another category of conclusive evidence, in which the evidence is

disputed. Undisputed evidence and conclusive evidence are not the same C

undisputed evidence may or may not be conclusive, and conclusive evidence may or

may not be undisputed.

Thus,

for example, in Murdock v. Murdock , we found no evidence to support a

verdict establishing the defendant’s paternity when blood tests conclusively

proved he was not the child’s father. [64]

The evidence was directly disputed C

the child’s mother testified she had conjugal relations with no one else during

the relevant time. [65]

Nevertheless, we held there was no evidence to support the paternity verdict

because of conclusive evidence to the contrary. [66]

Similarly,

in Texas & New Orleans Railroad Co. v. Compton , we found no evidence

that a railroad’s negligence caused an automobile to slam into the sixtieth car

of a slow-moving train. [67]

Again, the evidence was hotly disputed C

while railroad witnesses testified that warning signs were in place at the

crossing, the car’s driver and a passenger testified they saw nothing, and would

have been able to stop if they had. [68]

Nevertheless, we held there was no evidence to support the claim because, if the

driver could not see the side of a train before he hit it, he could not have

seen a crossing sign either. [69]

Of

course, there are few instances in which disputed evidence is conclusive, and

many instances in which undisputed evidence is not. As our sister court has

noted, testimony by a paid informant is legally sufficient to support a

conviction, even if “[t] wenty nuns testify that the

defendant was with them at the time, far from the scene of the crime ... [and]

[t] wenty more nuns testify that they saw the informant

commit the crime.” [70]

But a more famous clerical hypothetical by Judge Learned Hand shows the opposite

limit:

If,

however, it were proved by twenty bishops that either party, when he used the

words [in a contract], intended something else than the usual meaning which the

law imposes upon them, he would still be held .... [71]

While jurors

may generally believe either sinners or saints, their discretion is limited when

it is proved beyond question that an “eyewitness” was actually far away in

prison or totally blind on the day of the crime.

Proper

legal-sufficiency review prevents reviewing courts from substituting their

opinions on credibility for those of the jurors, but proper review also prevents

jurors from substituting their opinions for undisputed truth. When evidence

contrary to a verdict is conclusive, it cannot be disregarded.

E. Clear-and-Convincing Evidence

Since

the time of Justice Calvert’s article, new claims and burdens of proof have

arisen that require additions to the four types of no-evidence review Justice

Calvert considered exhaustive. Beginning with the United States Supreme Court’s

opinion in Jackson v. Virginia , appellate courts have recognized that,

while “one slender bit of evidence” may be all a reviewing court needs to affirm

a verdict based on the preponderance of the evidence, a higher burden of proof

requires a higher standard of review. [72]

As we recently stated, the standard for legal sufficiency works in tandem with

the standard of review C

“whenever the standard of proof at trial is elevated, the standard of appellate

review must likewise be elevated.” [73]

If the rule were otherwise, legally sufficient evidence to support a

preponderance-of-the-evidence verdict would satisfy the higher burdens as well,

thus rendering their differences meaningless. [74]

Accordingly,

we have held that a legal sufficiency review must consider all the

evidence (not just that favoring the verdict) in reviewing cases of parental

termination, [75]

defamation, [76]

and punitive damages. [77]

In such cases, again, evidence contrary to a verdict cannot be

disregarded.

F. Consciousness Evidence

Further,

we have had to particularize legal-sufficiency review in cases involving what a

party knew or why it took a certain course, as they are not amenable to review

under the exclusive standard.

Long

before gross negligence had to meet a clear-and-convincing burden, we recognized

in Burk Royalty Co. v. Walls that no-evidence review of such findings had

to include “all of the surrounding facts, circumstances, and conditions, not

just individual elements or facts.” [78]

As then Chief Justice Greenhill noted in concurring, speeding and running a red

light may not be legally sufficient evidence of gross negligence if one’s wife

and daughter are bleeding to death in the back seat. [79]

Reviewing courts assessing evidence of conscious indifference cannot disregard

part of what a party was conscious of. [80]

For

the same reasons, the exclusive standard of review has proven problematic in

insurance bad-faith cases. Liability in such cases requires proof that the

insurer denied coverage after it became reasonably clear. [81]

But that standard will always be met if reviewing courts must disregard any

evidence that coverage was unclear. [82]

Subsequent cases show that reviewing courts are in fact looking at all

the evidence to determine whether coverage was reasonably clear. [83]

This

problem arises in other contexts as well. In discrimination cases, discharged

employees will never have to prove that the reason given for termination was a

pretext if no-evidence review must disregard that reason. [84]

Government officials will never be entitled to immunity if we consider only

evidence suggesting they should have acted differently. [85]

And limitations will never run under the discovery rule if reviewing courts must

disregard all evidence that claimants knew of their claims. [86]

This

is not to say a reviewing court may credit a losing party’s explanations or

excuses if jurors could disregard them. For example, while an insurer’s reliance

on an expert report may foreclose bad faith recovery, [87]

it will not do so if the insurer had some reason to doubt the report. [88]

But a reviewing court cannot review whether jurors could reasonably disregard a

losing party’s explanations or excuses without considering what they were.

III . Contrary Evidence

That Must Be Disregarded

As

trials normally focus on issues that jurors could decide either way, reviewing

courts must disregard evidence contrary to the verdict far more often than they

must consider it. Just as no-evidence review that starts by disregarding

contrary evidence often must end up considering considerably more, no-evidence

review that begins by considering all the evidence must usually end up

considering considerably less.

Again,

we do not presume to categorize all circumstances in which contrary evidence

must be disregarded; a few examples serve to demonstrate that even under the

inclusive standard, viewing all the evidence in a light favorable to the verdict

often requires that much of it be disregarded.

A. Credibility Evidence

Jurors

are the sole judges of the credibility of the witnesses and the weight to give

their testimony. [89]

They may choose to believe one witness and disbelieve another. [90]

Reviewing courts cannot impose their own opinions to the contrary. [91]

Most

credibility questions are implicit rather than explicit in a jury’s verdict.

Thus, reviewing courts must assume jurors decided all of them in favor of the

verdict if reasonable human beings could do so. Courts reviewing all the

evidence in a light favorable to the verdict thus assume that jurors credited

testimony favorable to the verdict and disbelieved testimony contrary to it. [92]

For

example, viewing the evidence in the light favorable to the verdict means that

if both parties in a traffic accident testify they had the green light, an

appellate court must presume the prevailing party did and the losing party did

not. If the parties to an oral contract testify to conflicting terms, a

reviewing court must presume the terms were those asserted by the winner. When

all the evidence is viewed in the light most favorable to the jury verdict, some

of it must be completely discounted. Though not disregarded at the outset, the

end result is the same.

This

has always been our practice in cases using the inclusive scope of review. Thus,

we have concluded that a bailee sold cotton without

the bailor’s consent, despite the former’s denials, because the jury verdict favored the

latter. [93]

And we have affirmed a gross negligence verdict based on testimony that the

defendant’s speed was 80 miles per hour, without mentioning his own testimony to

a speed half that. [94]

Nor

is it necessary to have testimony from both parties before jurors may disbelieve

either. Jurors may disregard even uncontradicted and

unimpeached testimony from disinterested witnesses. [95]

Thus, an architect’s uncontradicted testimony that he

relied on a 20-year warranty was not binding on jurors when the bid

specifications he prepared included only much shorter warranties. [96]

Nor was an insured’s uncontradicted testimony about

lost furnishings binding on jurors when the fire scene contained several

indications of arson but few of burnt furniture. [97]

Even uncontroverted expert testimony does not bind

jurors unless the subject matter is one for experts alone. [98]

Of

course, “[t]he jury’s decisions regarding credibility must be reasonable.” [99]

Jurors cannot ignore undisputed testimony that is clear, positive, direct,

otherwise credible, free from contradictions and inconsistencies, and could have

been readily controverted . [100]

And as noted above, they are not free to believe testimony that is conclusively

negated by undisputed facts. But whenever reasonable jurors could decide what

testimony to discard, a reviewing court must assume they did so in favor of

their verdict, and disregard it in the course of legal sufficiency review.

B. Conflicting Evidence

It

is the province of the jury to resolve conflicts in the evidence. [101]

Accordingly, courts reviewing all the evidence in a light favorable to the

verdict must assume that jurors resolved all conflicts in accordance with that

verdict. [102]

Again,

this has always been the case even in those cases using the inclusive scope of

review. For example, in such cases we have sometimes detailed only the evidence

that supported a jury’s fraud finding. [103]

We have affirmed a bad-faith verdict for legal sufficiency despite “significant

evidence” that the insurer acted in good faith. [104]

We have found some evidence of lost profits, even though income tax returns

showed the contrary. [105]

And we have affirmed a jury’s negligence finding despite a defendant’s evidence

asserting it could not have prevented the accident. [106]

In

none of these cases did we state that the scope of review required us to

disregard evidence contrary to the verdict; instead, we started by considering

the entire record in each. But in each case we either discounted or never

mentioned conflicting evidence contrary to the verdict because viewing the

evidence in the light favorable to the verdict required us to do so.

Of

course, it is not always clear whether evidence is conflicting. Evidence is not

conflicting just because the parties cannot agree to it. For example, evidence

that a hospital controlled a doctor’s rotation and patient assignments raises no

material conflict with evidence that a different entity controlled the details

of medical treatment, as only the latter is material in a malpractice case. [107]

Similarly, evidence showing the terms of one loan does not conflict with

undisputed evidence that the parties never reached an agreement regarding the

terms of another . [108]

But

in every circumstance in which reasonable jurors could resolve conflicting

evidence either way, reviewing courts must presume they did so in favor of the

prevailing party, and disregard the conflicting evidence in their legal

sufficiency review.

C. Conflicting Inferences

Even

if evidence is undisputed, it is the province of the jury to draw from it

whatever inferences they wish, so long as more than one is possible and the jury

must not simply guess. Thus, in product liability cases jurors may find evidence

of a defect from subsequent modifications, even if there were plenty of other

reasons for the changes. [109]

Even if a defendant admits approaching an intersection from the wrong way on a

one-way street, jurors may infer the plaintiff failed to keep a proper lookout,

as that is one possible inference from the accident itself. [110]

Similarly, jurors may infer that relatives tore down posters of a missing child

to assist the child’s father, even though another inference was that the signs

simply embarrassed them. [111]

Accordingly,

courts reviewing all the evidence in a light favorable to the verdict must

assume jurors made all inferences in favor of their verdict if reasonable minds

could, and disregard all other inferences in their legal sufficiency review.

IV. Reconciling the Standards

Having

noted the dual lines of authority stating the scope of no-evidence review, and

the proper application and exceptions to each, we turn to the question of which

one is correct. For the reasons discussed below, we believe the answer is both.

A. Goals: The Standards Must Be The Same

Whether

a court begins by reviewing all the evidence or disregarding part in a

legal-sufficiency review, there can be no disagreement about where that review

should end. If the evidence at trial would enable reasonable and fair‑minded

people to differ in their conclusions, then jurors must be allowed to do so. [112]

A reviewing court cannot substitute its judgment for that of the trier -of-fact, so long as the evidence falls within this

zone of reasonable disagreement. [113]

Similarly,

there is no disagreement about how a reviewing court should view evidence in the

process of that review. Whether a reviewing court starts with all or only part

of the record, the court must consider evidence in the light most favorable to

the verdict, and indulge every reasonable inference that would support it. [114]

But if the evidence allows of only one inference, neither jurors nor the

reviewing court may disregard it. [115]

Given

these premises, it is no coincidence that the two standards should reach the

same result C

indeed they must . Any scope of appellate review smaller than what

reasonable jurors could believe will reverse some verdicts that are perfectly

reasonable; any scope of review larger than what reasonable jurors could believe

will affirm some verdicts that are not.

Further,

the two must coincide if this Court is to perform its constitutional duties.

Although factual sufficiency has been the sole domain of the intermediate

appellate courts in Texas since 1891, our jurisdiction has always included legal

sufficiency, as that is a question of law, not of fact. [116]

Construing either standard to require us to do less would be just as

unconstitutional as construing either to allow us to do more.

This

is not to say judges and lawyers will always agree whether evidence is legally

sufficient. As discussed more fully below, reasonable people may disagree about

what reasonable jurors could or must believe. But once those boundaries are

settled, any standard of review must coincide with those boundaries C

affirming jury verdicts based on evidence within them and reversing jury

verdicts based on evidence that is not. Any standard that does otherwise is

improperly applied.

B. Other Motions: The Standards Must Be The

Same

Just

as the scope of no-evidence review must coincide with its goals, the scope of

review should not depend upon the motion in which it is asserted. Judgment

without or against a jury verdict is proper at any course of the proceedings

only when the law does not allow reasonable jurors to decide otherwise.

Accordingly, the test for legal sufficiency should be the same for summary

judgments, directed verdicts, judgments notwithstanding the verdict, and

appellate no-evidence review.

Our statements of the standard for reviewing a directed verdict present

the same mixed bag found with general no-evidence review. We have most often

used the exclusive standard, stating that courts reviewing directed verdicts

must consider only evidence supporting the nonmovant’s

case and disregard all contrary evidence. [117]

But we have also stated that reviewing courts should use the inclusive standard,

considering all the evidence in a light contrary to the directed verdict. [118]

And we have sometimes stated both, requiring reviewing courts to consider all

the evidence in a light contrary to the directed verdict and then to disregard

all conflicting evidence that supports it. [119]

By

contrast, cases concerning judgments non obstante

verdicto most often utilize the inclusive scope of

review. Beginning with the 1931 amendment authorizing trial judges to grant

them, [120]

we have generally reviewed such orders by considering all the evidence in a

light favorable to the verdict that was set aside. [121]

In later years we have sometimes adopted the exclusive standard, [122]

but our opinions doing so usually cite to general no-evidence cases in which no

judgment n.o.v . was involved. [123]

The

one exception in which both standards do not expressly appear is in the scope of

review for summary judgments. Here, there is only one standard C

a reviewing court must examine the entire record in the light most favorable to

the nonmovant , indulging every reasonable inference

and resolving any doubts against the motion. [124]

Reviewing courts do not disregard the evidence supporting the motion; if

they did, all summary judgments would be reversed.

In

practice, however, a different scope of review applies when a summary judgment

motion is filed without supporting evidence. [125]

In such cases, evidence supporting the motion is effectively disregarded because

there is none; under the rule, it is not allowed. Thus, although a reviewing

court must consider all the summary judgment evidence on file, in some cases

that review will effectively be restricted to the evidence contrary to the

motion.

The

standards for taking any case from the jury should be the same, no matter what

motion is used. If only one standard were proper, we would not expect both to

appear in cases reviewing directed verdicts, judgments notwithstanding the

verdict, and summary judgments. But both do.

C. Federal Courts: The Standards Are The Same

The

federal courts have had a similar split of authority between the inclusive and

exclusive standards for scope of review. But no longer C

the United States Supreme Court recently concluded in Reeves v. Sanderson

Plumbing Products, Inc . that the two tests are the same. [126]

Under

Rule 50 of the federal rules of procedure, a court should render judgment as a

matter of law when “there is no legally sufficient evidentiary basis for a

reasonable jury to find for that party on that issue.” [127]

In deciding whether all or only part of the evidence should be considered, the

Supreme Court stated:

The Courts

of Appeals have articulated differing formulations as to what evidence a court

is to consider in ruling on a Rule 50 motion. Some decisions have stated that

review is limited to that evidence favorable to the nonmoving party, while most

have held that review extends to the entire record, drawing all reasonable

inferences in favor of the nonmovant .

On closer

examination, this conflict seems more semantic than real. Those decisions

holding that review under Rule 50 should be limited to evidence favorable to the

nonmovant appear to have their genesis in Wilkerson

v. McCarthy [ [128] ].

In Wilkerson , we stated that “in passing upon whether there is sufficient

evidence to submit an issue to the jury we need look only to the evidence and

reasonable inferences which tend to support the case of” the nonmoving party.[ [129] ]

But subsequent decisions have clarified that this passage was referring to the

evidence to which the trial court should give credence , not the

evidence that the court should review . In the analogous context of

summary judgment under Rule 56, we have stated that the court must review the

record “taken as a whole.” And the standard for granting summary judgment

“mirrors” the standard for judgment as a matter of law, such that “the inquiry

under each is the same.” It therefore follows that, in entertaining a motion for

judgment as a matter of law, the court should review all of the evidence in the

record. [130]

We

address the Supreme Court’s conclusion as to the most appropriate standard

below; the relevant point here is its conclusion that differences between the

inclusive and exclusive standards are more semantic than

real.

D. Objections: The Standards Are Not The Same

While

we have used the two standards for the scope of review interchangeably for many

years in many different contexts, several arguments suggest they are not the

same.

First,

the courts of appeals often use the two standards in illustrations of the

difference between legal and factual sufficiency, with the exclusive standard

tied to the former and the inclusive standard to the latter:

When

[reviewing] legal sufficiency, we consider only the evidence and

inferences that tend to support the award of damages and disregard all evidence

and inferences to the contrary. . . . When we review factual sufficiency, we

consider and weigh all of the evidence and will set aside the verdict

only if it is so against the great weight and preponderance of the evidence that

it is clearly wrong and unjust. [131]

But

there have always been exceptions to this distinction. [132]

As demonstrated in Parts II and III above, it

is generally true that the result of legal-sufficiency review is to

disregard contrary evidence, but there are exceptions when a reviewing court

cannot. It is not surprising that in drawing the general distinction between

legal and factual sufficiency, courts have not complicated that distinction by

listing the several exceptions in which the scope of review C

though not the standard of review C

may overlap.

Second,

it has been argued that the exclusive standard “is an important prophylactic”

against invasion of the jury's province, as appellate judges are less likely to

consider contrary evidence when they should not if the exclusive standard is

used. [133]

But if that is true, the opposite should also be the case C

appellate courts are less likely to consider contrary evidence when they must

(as shown in Part II) if the exclusive standard is used. No matter which

standard is used, appellate courts must take care not to consider or disregard

too little or too much.

Conversely,

several factors appear to favor application of the inclusive standard. First,

when we have said “we must look only at that evidence which tends to support the

judgment,” [134]

we could not have been speaking literally; no glasses filter evidence, and

judges cannot abandon such judgments to law clerks or litigants. It is often

hard to say whether evidence does or does not support a verdict C

the same facts may support different conclusions, [135]

or may support one part of a verdict but not another. [136]

Nor can evidence supporting a verdict be identified by which party offered it

C

parties depend on admissions and cross-examination during their opponent’s case,

and minimize damaging evidence by presenting it during their own. As a practical

matter, a court cannot begin to say what evidence supports a verdict without

reviewing it all.

Second,

an appellate court that begins by disregarding one party’s evidence may strike

many citizens as extending something less than justice for all. Concerns about

open government and open courts suggest an appellate process that considers all

the evidence, though deferring to the jury’s verdict. While there is some

dispute whether Lady Justice should wear a blindfold, [137]

the metaphor was surely never intended to suggest that justice disregards the

facts.

In

sum, the exclusive standard is helpful in recognizing the distinctive roles of

judge and jury, intermediate and supreme court. By contrast, the inclusive

standard is helpful in recognizing what courts actually do, and must be seen to

do. Both are important; we should avoid choosing between them if we can.

E. Conclusion: The Standards Are The Same

As

both the inclusive and exclusive standards for the scope of legal-sufficiency

review have a long history in Texas, as both have been used in other contexts to

review matter-of-law motions, as the federal courts have decided the differences

between the two are more semantic than real, and as both C

properly applied C

must arrive at the same result, we see no compelling reason to choose among

them.

The

key qualifier, of course, is “properly applied.” The final test for legal

sufficiency must always be whether the evidence at trial would enable reasonable

and fair‑minded people to reach the verdict under review. Whether a reviewing

court begins by considering all the evidence or only the evidence supporting the

verdict, legal-sufficiency review in the proper light must credit favorable

evidence if reasonable jurors could, and disregard contrary evidence unless

reasonable jurors could not.

While

judges and lawyers often disagree about legal sufficiency in particular cases,

the disagreements are almost always about what evidence jurors can or must

credit and what inferences they can or must make. It is inevitable in human

affairs that reasonable people sometimes disagree; thus, it is also inevitable

that they will sometimes disagree about what reasonable people can disagree

about. This is not a new problem; Justice Calvert noted it almost fifty years

ago:

The rule as

generally stated is that if reasonable minds cannot differ from the conclusion

that the evidence lacks probative force it will be held to be the legal

equivalent of no evidence. The application of the rule can lead to strange

results. It is theoretically possible, and sometimes not far from actual fact,

that five members of the Supreme Court will conclude that the evidence

supporting a finding of a vital fact has no probative force, and in reaching the

conclusion through application of the rule will thus hold, in effect, that the

trial judge who overruled a motion for instructed verdict, the twelve jurors who

found the existence of the vital fact, the three justices of the Court of Civil

Appeals who overruled a “no evidence” point of error and four dissenting

justices of the Supreme Court are not men [138]

of “reasonable minds.” [139]

It

is not hubris that occasionally requires an appellate court to find a jury

verdict has no reasonable evidentiary basis. As Justice Frankfurter stated long

ago:

Only an incompetent or a wilful judge would take a case from the jury when the issue

should be left to the jury. But since questions of negligence are questions of

degree, often very nice differences of degree, judges of competence and

conscience have in the past, and will in the future, disagree whether proof in a

case is sufficient to demand submission to the jury. The fact that [one] thinks

there was enough to leave the case to the jury does not indicate that the other

[is] unmindful of the jury’s function. The easy but timid way out for a trial

judge is to leave all cases tried to a jury for jury determination, but in so

doing he fails in his duty to take a case from the jury when the evidence would

not warrant a verdict by it. A timid judge, like a biased judge, is

intrinsically a lawless judge. [140]

V. Application to the Facts

It

remains to apply the scope of review to the facts presented.

A

majority of the court of appeals affirmed the verdict for the Wilsons , finding legally sufficient evidence that the City

knew increased flooding on the Wilsons ’ property was

substantially certain to occur. [141]

The majority pointed to the following proof. First, the Wilsons ’ expert testified that the revised plan was certain

to create flooding. [142]

Second, as the City admittedly knew that development would increase runoff and

the Sebastian ditch would channel it toward the Wilsons , so it knew “with absolute certainty” that flooding

would be the result. [143]

Third, the City “did not explain” why the Master Plan required a drainage ditch

across the Wilsons ’ property but the revised plan did

not, thus allowing jurors to infer that the City knew this omission would cause

flooding. [144]

Of

course, the City did explain why it approved the new plan C

because three sets of engineers said the omitted ditch was unnecessary C

but the court felt compelled by the scope of review to disregard that

evidence.

For

several of the reasons stated earlier, we believe the court of appeals did not

properly apply the scope of review. The critical question in this case was the

City’s state of mind C

the Wilsons had to prove the City knew (not

should have known) that flooding was substantially certain. A reviewing court

cannot evaluate what the City knew by disregarding most of what it was told.

Moreover,

when a case involves scientific or technical issues requiring expert advice (as

this one does), jurors cannot disregard a party’s reliance on experts hired for

that very purpose without some evidence supplying a reasonable basis for doing

so. [145]

Here, it was uncontroverted that three sets of

engineers certified that the revised plans met the City’s codes and regulations

C

and thus would not increase downstream flooding. The same firm that drew up the

original Master Plan certified the revised one; unless the City had some reason

to know the first certification was true and the second one was false (of which

there was no evidence), there was only one logical inference jurors could

draw.

None

of the evidence cited by the court of appeals showed the City knew more than it

was told by the engineers. The Wilsons ’ expert

testified that flooding was (in his opinion) inevitable, but not that the

City knew it was inevitable. The Wilsons ’ expert

gave no opinion on the latter point.

Second,

ending a ditch at a neighbor’s property line may be evidence that a defendant

was substantially certain of the result in some cases, but not in the context of

this one. City witnesses admitted knowing development would increase runoff at

the head of this drainage system, but not flooding at its foot. Calculating the

effect of detention ponds and absorption in a grassy drainage ditch forty-five

feet wide and over two hundred yards long required hydrological formulas,

computer models, and mathematical calculations. The omission of the ditch across

the Wilsons ’ property obviously raised concerns that

the City investigated, but was no evidence that the City knew the advice it

received in response was wrong.

The

Wilsons also point to a letter Sebastian’s attorney

wrote the City demanding indemnity in case the new ditch flooded the Wilsons . But attorneys must protect a client from potential

liability whether it is real or imagined C

and justly so. In the letter, the attorney never purports to be an expert in

hydrology, or cite the opinions of anyone who was. This letter may have required

the City to investigate, but again is no evidence it knew the advice it received

was wrong. [146]

Our

concurring colleagues believe reasonable jurors could nevertheless disregard

what all the engineers certified because the City had a financial incentive to

believe them rather than pay the Wilsons . Of course,

defendants have a financial incentive to avoid paying damages in every case; if

that incentive alone is some evidence of liability, then plaintiffs create

enough evidence to go to the jury every time they file suit.

But

more important, this ignores what the Wilsons had to

prove C

not that the City might have disbelieved the engineers’ reports, but that

it did . This requires evidence of “objective indicia of intent” showing

the City knew identifiable harm was occurring or substantially certain to

result. [147]

Jurors’ doubts about the engineers’ reports or the City’s motives could not

supply them with objective indicia that the City knew flooding would occur.

Constitutional concerns about the roles of judge and jury do not allow either to

make such evidence up.

We

agree with the court of appeals that the Wilsons

presented some evidence that the City damaged their property, and that in

drawing up and approving drainage plans it was acting for a public purpose. The

missing piece in the evidence here is proof that the City knew the plans it

approved were substantially certain to increase flooding on the Wilsons ’ properties. While the City certainly knew that fact

after the flooding started, the Wilsons never pleaded

or submitted to the jury any takings theory other than the City’s initial

approval.

Crediting

all favorable evidence that reasonable jurors could believe and disregarding all

contrary evidence except that which they could not ignore, we hold there was no

evidence the City’s approval of the revised drainage plan was an intentional

taking.

Accordingly,

we reverse the court of appeals’ judgment against the City under article I,

section 17 of the Texas Constitution. Because the court of appeals declined to

address the jury’s alternate verdict for the Wilsons

on a claim under the Texas Water Code, we remand the case to that court to

determine that issue.

________________________________

Scott

Brister

Justice

OPINION

DELIVERED: June 10,

2005

[1] The City of Fort Worth asserts in an amicus brief that in 2001 alone it

approved 325 subdivision plats creating 5,857 residential lots within its

extraterritorial jurisdiction, which of course excludes surrounding

communities.

[2] Evidence at trial and briefs by amici indicate that cities normally acquire title to these

easements to ensure they are properly mowed and maintained after the developers’

departure.

[3] Tex . Const . art. I, § 17; City of

Dallas v. Jennings , 142 S.W.3d 310, 313-14

( Tex. 2004).

[4] 86 S.W.3d 693, 715, 717 .

[5] Id . at 700.

[6] See , e.g. , Wal‑Mart Stores, Inc. v.

Canchola , 121 S.W.3d 735, 739

( Tex. 2003) (per curiam );

Bradford v. Vento , 48 S.W.3d 749, 754 ( Tex. 2001); City of Fort Worth v. Zimlich , 29 S.W.3d 62, 69

( Tex. 2000); Wal‑Mart Stores, Inc. v. Gonzalez , 968

S.W.2d 934, 936 ( Tex. 1998); Cont’l

Coffee Prods. Co. v. Cazarez , 937 S.W.2d 444, 450

(Tex. 1996); Burroughs Wellcome Co. v. Crye , 907 S.W.2d 497, 499 (Tex. 1995);

Browning‑Ferris, Inc. v. Reyna , 865 S.W.2d 925, 928 (Tex. 1993); Holt

Atherton Indus., Inc. v. Heine , 835 S.W.2d 80, 84

(Tex. 1992); Weirich v. Weirich , 833 S.W.2d 942, 945 (Tex. 1992); Havner v. E‑Z Mart Stores, Inc. , 825 S.W.2d

456, 458 (Tex. 1992); Lewelling v. Lewelling , 796 S.W.2d 164, 166 (Tex. 1990); Burkard v. ASCO Co. , 779 S.W.2d 805, 806 (Tex.

1989) (per curiam ); Brown v. Edwards Transfer

Co. , 764 S.W.2d 220, 223 (Tex. 1988); City of Gladewater v. Pike , 727

S.W.2d 514, 518 (Tex. 1987); King v. Bauer , 688 S.W.2d 845, 846 (Tex.

1985); Tomlinson v. Jones , 677 S.W.2d 490, 492 (Tex. 1984); Glover v.

Tex. Gen. Indem . Co. , 619 S.W.2d 400, 401

( Tex. 1981) (per curiam ); Holley

v. Adams , 544 S.W.2d 367, 370 ( Tex. 1976); Garza v. Alviar , 395 S.W.2d 821, 823

( Tex. 1965); Wininger v.

Ft. Worth & D.C. Ry . Co. , 143 S.W. 1150, 1152

( Tex. 1912).

[7] See , e.g. , St. Joseph Hosp. v.

Wolff , 94 S.W.3d 513, 519 ( Tex. 2002) (plurality op.); Associated Indem . Corp. v. CAT Contracting, Inc ., 964 S.W.2d 276, 285-86 (Tex. 1998) ; State Farm

Lloyds Ins. Co. v. Maldonado , 963 S.W.2d 38, 40 (Tex. 1998); Formosa

Plastics Corp. v. Presidio Eng'rs & Contractors,

Inc ., 960 S.W.2d 41, 48 (Tex. 1998); Merrell Dow Pharms ., Inc. v. Havner , 953

S.W.2d 706, 711 (Tex. 1997); White v. Southwestern Bell Tel. Co. , 651

S.W.2d 260, 262 (Tex. 1983); Burk Royalty v. Walls , 616 S.W.2d 911, 922

(Tex. 1981); Harbin v. Seale , 461 S.W.2d 591, 592 (Tex. 1970); De

Winne v. Allen , 277 S.W.2d 95, 97 (Tex. 1955);

Hall v. Med. Bldg. of Houston , Tex., 251 S.W.2d 497, 498 (Tex. 1952).

[8] Tarrant Reg’l Water Dist.

v. Gragg , 151 S.W.3d 546, 552 (Tex. 2004); Bostrom Seating, Inc. v. Crane Carrier Co. ,

140 S.W.3d 681, 684 (Tex. 2004); Lozano v. Lozano, 52 S.W.3d 141, 144

(Tex. 2001) (per curiam ); La.-Pac. Corp. v.

Andrade , 19 S.W.3d 245, 247 (Tex. 1999); Latham v. Castillo , 972

S.W.2d 66, 68 (Tex. 1998); Brown v. Bank of Galveston, Nat’l Ass'n , 963 S.W.2d 511, 513 (Tex. 1998).

[9] See , e.g. , Coastal Transp . Co. v. Crown Cent. Petroleum Corp ., 136 S.W.3d

227, 234 ( Tex. 2004); Szczepanik

v. First S. Trust Co. , 883 S.W.2d 648, 649 (Tex. 1994) (per curiam ); compare Biggers v.

Cont’l Bus Sys., Inc ., 303 S.W.2d 359, 363 (Tex.

1957) (“We may consider only that evidence, if any, which, viewed in its

most favorable light, supports the jury findings, and we must disregard all

evidence which would lead to a contrary result.”) (emphasis added), with

Biggers v. Cont’l Bus Sys.,

Inc ., 298 S.W.2d 79, 81 (Tex. 1956) (“[T]he duty of this Court [is] to

examine and consider all of the evidence bearing on the controlling

issues, and having done so to decide whether there is evidence of probative

value to support the answers made by the jury to the issues.”) (quotation

omitted) (emphasis added), and Cartwright v. Canode , 171 S.W. 696, 698

( Tex. 1914) (“[W]e must reject all evidence favorable to the

plaintiffs in error, and consider only the facts and circumstances which tend to

sustain the verdict. . . . In considering this question, we must take into

account all of the facts and circumstances attending the

transaction.”).

[10] See , e.g. , W. Wendell Hall, Standards

of Review in Texas , 34 ST. MARY ’S L.J. 1, 159-62 (2002); William V. Dorsaneo , III , Judges, Juries, & Reviewing Courts , 53

SMU L.R. 1497, 1498, 1507-11 (2000); Phil Hardberger , Juries Under Siege , 30 St. Mary ’s L.J. 1, 40-41 (1998). But see William Powers, Jr.,

Judge & Jury in the Texas Supreme Court , 75

Tex . L.

Rev . 1699, 1699-1700, 1704-19 (1997) (concluding the Court

is not changing the no-evidence standard of review but is moving away from broad

definitions of duty and toward particularized definitions of

duty).

[11] Robert W. Calvert was an associate justice of this

Court from 1950 to 1960, and Chief Justice from 1961 to

1972.

[12] Robert W. Calvert, “No Evidence” & “Insufficient

Evidence” Points of Error , 38 Tex . L.

Rev . 361 (1960).

[13] Id. at

361.

[14] “Most of what has been said here is repetitious of what

has been said before in the cited cases and articles. The purpose of the writer

here has been to try to bring former writings on the subject into compact form

and under somewhat closer analysis.” Id. at 371.

[15] Id. at

362-63.

[16] See, e.g., King Ranch, Inc. v. Chapman , 118

S.W.3d 742, 751 (Tex. 2003); Marathon Corp. v. Pitzner , 106 S.W.3d 724, 727 (Tex. 2003) (per curiam ); Uniroyal

Goodrich Tire Co. v. Martinez , 977 S.W.2d 328, 334 (Tex. 1998); Mar.

Overseas Corp. v. Ellis , 971 S.W.2d 402, 409 (Tex. 1998); Merrell Dow

Pharm ., Inc. v. Havner ,

953 S.W.2d 706, 711 (Tex. 1997); Anderson v. City of Seven Points , 806

S.W.2d 791 , 795 n.3 (Tex. 1991); Cecil v. Smith , 804 S.W.2d 509 , 510 n.2

(Tex. 1991); Juliette Fowler Homes, Inc. v.

Welch Assocs., Inc. , 793 S.W.2d 660 , 666 n.9 (Tex.

1990).

[17] Calvert, supra note 12, at

364.

[18] See In re J.F.C. , 96 S.W.3d 256, 266 (Tex.

2002); Uniroyal , 977 S.W.2d at 340 ; Triton

Oil & Gas Corp. v. Marine Contractors & Supply, Inc ., 644 S.W.2d

443, 446 (Tex. 1982).

[19] Calvert, supra note 12, at 364 (“If there is an

absolute absence of evidence of a vital fact . . . an appellate court has no

occasion to concern itself with an abstract rule such as how minds of reasonable

men might view the situation.”).

[20] New Times, Inc. v. Isaacks , 146 S.W.3d

144, 158-59 ( Tex. 2004); Turner v. KTRK Television, Inc ., 38

S.W.3d 103, 114 ( Tex. 2000); Guisti v.

Galveston Tribune Co. , 150 S.W. 874 , 877-78

(1912).

[21] Bentley v. Bunton , 94

S.W.3d 561, 581 ( Tex. 2002) (considering remarks in context of series of

talk-show programs); Turner , 38 S.W.3d at 115 (holding defamation

includes story in which details are right but gist is wrong).

[22] Shell Oil Co. v. Khan , 138 S.W.3d 288, 292

( Tex. 2004).

[23] DeWitt County Elec. Co‑op., Inc. v. Parks , 1 S.W.3d 96, 102 ( Tex. 1999).

[24] Tiller v. McLure , 121

S.W.3d 709, 714 ( Tex. 2003) (per curiam ); see

also Tex. Farm Bureau Mut . Ins. Cos. v.

Sears , 84 S.W.3d 604, 610-11

( Tex. 2002); GTE Southwest, Inc. v. Bruce , 998 S.W.2d

605, 612 ( Tex. 1999).

[25] See George Grubbs Enters., Inc. v. Bien , 881 S.W.2d 843, 852-53 (Tex. App. C Fort Worth 1994) (holding that efforts to pressure

deaf-mute consumer to buy car were legally sufficient evidence of intentional

infliction), rev’d on other grounds , 900

S.W.2d 337, 338 ( Tex. 1995).

[26] See Tiller , 121 S.W.3d at 714 (holding efforts

to pressure widow of contracting party to complete project were legally

insufficient evidence of intentional infliction).

[27] See , e.g. , id . at 713-14

(discussing contrary evidence showing defendant’s reasonable concerns about

timeliness of plaintiff’s work); Sears , 84 S.W.3d at 612 (discussing

contrary evidence that defendant believed claimant was involved in suspicious

dealings).

[28] Bostrom Seating,

Inc. v. Crane Carrier Co. , 140 S.W.3d 681, 684, 685 (Tex. 2004) (holding no

evidence supported defect as comments from deposition “were read out of

context”).

[29] Coastal Transp . Co. v.

Crown Cent. Petroleum Corp ., 136 S.W.3d 227 , 232 n.1

( Tex. 2004) (citing Henry v. Phillips , 151 S.W. 533,

538 ( Tex. 1912)). This rule was changed for hearsay evidence in

1983. See Tex . R. Evid . 802 ("Inadmissible hearsay admitted without objection

shall not be denied probative value merely because it is

hearsay.").

[30] Tex. & P. Ry . Co. v.

Ball , 75 S.W. 4, 6 ( Tex. 1903).

[31] Minyard Food

Stores, Inc. v. Goodman , 80 S.W.3d 573, 579 (Tex. 2002) (holding defamation

was not in course and scope of employment as duties required employee to

cooperate in investigation but not to lie); Robertson Tank Lines, Inc. v. Van

Cleave , 468 S.W.2d 354, 360 (Tex. 1971) (holding truck driver was not in

course of employment during social visit to his

father).

[32] Bowles v. Bourdon , 219 S.W.2d 779, 782-83 (Tex.

1949) (affirming directed verdict against malpractice claim as inadequate expert

testimony from doctor of same school or practice as defendant rendered proof

legally insufficient).

[33] See Leitch

v. Hornsby , 935 S.W.2d 114, 119 ( Tex. 1996).

[34] See Burroughs Wellcome Co. v. Crye , 907

S.W.2d 497, 499-500 (Tex. 1995) (holding opinion that spray caused frostbite was

legally insufficient as it assumed absence of redness when plaintiff admitted

the contrary); Roark v. Allen , 633 S.W.2d 804, 809 (Tex. 1982) (holding

opinion that physician should have warned of possible skull fracture was legally

insufficient as it assumed physician was aware of fracture when there was no

proof he was).

[35] See E.I. du Pont de

Nemours & Co. v. Robinson , 923 S.W.2d 549, 556

( Tex. 1995) (adopting reasoning of Daubert v. Merrell Dow Pharms ., Inc. , 509 U.S. 579

(1993)).

[36] Merrell Dow Pharms ., Inc.

v. Havner , 953 S.W.2d 706, 714, 720

( Tex. 1997).

[37] Id . at 711, 724-30.

[38] Kerr‑McGee Corp. v. Helton , 133 S.W.3d 245,

254-57 ( Tex. 2004).

[39] Calvert, supra note 12, at

364.

[40] Id . at 364-65.

[41] Ford Motor Co. v. Ridgway , 135 S.W.3d 598, 601 (Tex. 2004) (holding

evidence that truck caught fire unaccompanied by proof identifying any defect

did not exceed a scintilla, as jurors would have to guess cause); Marathon

Corp. v. Pitzner , 106 S.W.3d 724, 729 (Tex. 2003)

(per curiam ); Hammerly Oaks, Inc. v. Edwards , 958 S.W.2d

387, 392 (Tex. 1997); W. Tel. Corp. v. McCann , 99 S.W.2d 895, 900 (Tex.

1937); Calvert, supra note 12, at 365.

[42] Tubelite , a Div. of

Indal , Inc. v. Risica &

Sons, Inc ., 819 S.W.2d 801, 805 (Tex. 1991); see also Litton

Indus. Prods., Inc. v. Gammage , 668 S.W.2d 319, 324 (Tex. 1984) (citing

Tex. Sling Co. v. Emanuel , 431 S.W.2d 538, 541 (Tex.

1968)).

[43] Lozano , 52 S.W.3d at

167 .

[44] Calvert, supra note 12, at

365.

[45] Id .

[46] Wal‑Mart Stores, Inc. v. Gonzalez , 968 S.W.2d

934, 938 ( Tex. 1998).

[47] See Marathon Corp. v. Pitzner , 106 S.W.3d 724, 729

( Tex. 2003) (per curiam );

McCann , 99 S.W.2d at 900 .

[48] Calvert, supra note 12, at 363-64. But other

commentators disagree. See Powers, supra note 10, at 1703-10. We

have held that a “conclusively and as a matter of law” point may be asserted

under a “no evidence” point. O'Neil v. Mack Trucks, Inc. , 542 S.W.2d 112,

113 ( Tex. 1976). And the cases in this section note that

conclusive proof is often asserted by parties that do not carry the

burden of proof. See also Dow Chem. Co. v. Francis , 46 S.W.3d 237, 241

(Tex. 2001) (per curiam ) (court must first examine

record for evidence supporting verdict, ignoring all evidence to the contrary;

if there is no such evidence, the court then examines the entire record to see

if the contrary finding is established as a matter of law).

[49] Calvert, supra note 12, at 363-64. But

see , e.g. , Cecil v. Smith , 804 S.W.2d 509 , 510 n.2 (Tex. 1991)

(“Cecil’s points that (1) there was no evidence to support the findings and (2)

the contrary of each finding was established as a matter of law will hereinafter

collectively be referred to as her "no evidence"

points.”).

[50] St. Joseph Hosp. v. Wolff , 94 S.W.3d 513, 519-20

( Tex. 2002) (plurality op.) (quoting Universe Life Ins.

Co. v. Giles , 950 S.W.2d 48 , 51 n.1 ( Tex. 1997)).

[51] Tex. & N.O.R Co. v. Burden , 203 S.W.2d 522,

528, 530 (Tex. 1947); see also Prudential Ins. Co. of Am. v. Krayer , 366 S.W.2d 779, 783 (Tex. 1963) (finding

evidence of suicide undisputed after disregarding disputed portion of

facts).

[52] Sullivan v. Barnett , 471 S.W.2d 39, 44

( Tex. 1971); Wright v. Vernon Compress Co. , 296 S.W.2d

517, 523 ( Tex. 1956) (“[T]he trial court is required to submit only

controverted issues. No jury finding is necessary to

establish undisputed facts.”); Clark v. Nat’l Life & Accident Ins.

Co. , 200 S.W.2d 820, 822 (Tex. 1947) (“ Uncontroverted questions of fact need not be and should not

be submitted to the jury for its determination.”); S. Underwriters v.

Wheeler , 123 S.W.2d 340, 341 (Tex. 1939).

[53] County of Bexar v. Santikos , 144 S.W.3d 455, 460-61

( Tex. 2004).

[54] PPG Indus., Inc. v. JMB/Houston Ctrs . Partners Ltd. P’ship , 146 S.W.3d

79, 97-98 ( Tex. 2004).

[55] State Farm Lloyds Ins. Co. v. Maldonado , 963

S.W.2d 38, 40 ( Tex. 1998).

[56] Wal‑Mart Stores, Inc. v. Miller , 102 S.W.3d 706,

709-10 ( Tex. 2003) (per curiam ).

[57] See Johnson & Johnson Med., Inc. v. Sanchez ,

924 S.W.2d 925, 930 ( Tex. 1996).

[58] King v. Graham , 126 S.W.3d 75, 78-79 (Tex. 2003)

(per curiam ) (holding no evidence supported malicious

prosecution claim as district attorney admitted prosecution was due to item he

overlooked rather than any false statements by

defendants).

[59] Travelers Ins. Co. v. Seabolt , 361 S.W.2d 204, 206

( Tex. 1962) (return to regular job in which use of hand was

required conclusively established claimant did not suffer total loss of

use).

[60] Navarette v.

Temple Indep . Sch . Dist ., 706 S.W.2d 308, 309-10

( Tex. 1986) (return to work did not conclusively establish

injury was not total as claimant could not do regular work and employer

voluntarily accommodated her with lesser duties).

[61] See , e.g. , Prudential Ins. Co. of Am.

v. Krayer , 366 S.W.2d 779, 783

( Tex. 1963).

[62] See Republic Nat’l Life Ins. Co. v. Heyward , 536 S.W.2d

549, 552 ( Tex. 1976).

[63] Uniroyal Goodrich

Tire Co. v. Martinez , 977 S.W.2d 328, 340

( Tex. 1998); Triton Oil & Gas Corp. v. Marine

Contractors & Supply, Inc ., 644 S.W.2d 443, 446

( Tex. 1982).

[64] 811 S.W.2d 557, 560 ( Tex. 1991).

[65] Id . at 558.

[66] Id . at 560. In defense of jurors, it should be noted that

the trier -of-fact in Murdock was a

judge.

[67] 136 S.W.2d 1113, 1115

( Tex. 1940).

[68] Id .

[69] Id .

[70] Clewis v.

State , 922 S.W.2d 126 , 133 n.12 (Tex. Crim . App.

1996) (en banc) (citation omitted).

[71] Hotchkiss v. Nat’l City Bank , 200 F. 287, 293

(S.D.N.Y. 1911).

[72] 443 U.S. 307, 320 n.14 (1979).

[73] Southwestern Bell Tel. Co. v. Garza , ___ S.W.3d

___, ___ ( Tex. 2004).

[74] Our sister court reviews the legal sufficiency of

criminal convictions by considering “ all evidence which the jury was

permitted, whether rightly or wrongly, to consider” in the light most favorable

to the prosecution. Moff v. State , 131

S.W.3d 485, 488 (Tex. Crim . App. 2004); see also

Vodochodsky v. State , 158 S.W.3d 502, 509 (Tex.

Crim . App. 2004).

[75] In re J.F.C. , 96 S.W.3d 256, 266

( Tex. 2002).

[76] Bentley v. Bunton , 94

S.W.3d 561, 596 ( Tex. 2002); Turner v. KTRK Television, Inc. , 38

S.W.3d 103, 120 ( Tex. 2000).

[77] Garza , ___ S.W.3d at

___.

[78] 616 S.W.2d 911, 922 ( Tex. 1981).

[79] Id . at 926 (Greenhill, C.J.,

concurring).

[80] See Coastal Transp . Co. v.

Crown Cent. Petroleum Corp. , 136 S.W.3d 227, 234-35

( Tex. 2004).

[81] Universe Life Ins. Co. v. Giles , 950 S.W.2d 48,

55-56 ( Tex. 1997).

[82] See id . at 51 (noting same problem with previous

test whether insurer had reasonable basis for denying

claim).

[83] See Rocor Int’l, Inc. v.

Nat’l Union Fire Ins. Co. , 77 S.W.3d 253, 262-63 (Tex. 2002) (finding no

evidence of bad faith based in part on defendant’s correspondence showing

misunderstanding regarding settlement terms); State Farm Fire & Cas . Co. v. Simmons , 963 S.W.2d 42, 45 (Tex.

1998)(affirming bad-faith verdict after noting that insurer gave contradictory

reasons for not interviewing potential arsonists); Minn. Life Ins. Co. v.

Vasquez , 133 S.W.3d 320, 330 (Tex. App. C Corpus Christi 2004, pet. filed) (finding some evidence

of bad faith because, though insurer showed hospital stymied its efforts to

obtain records, insurer failed to seek same information from other sources);

Allstate Tex. Lloyds v. Mason , 123 S.W.3d 690, 704-06 (Tex.

App. C Fort Worth 2003, no pet.) (reversing bad-faith verdict

for legal insufficiency because insurer reasonably relied on expert report);

Allison v. Fire Ins. Exch. , 98 S.W.3d 227, 249-50 (Tex. App. C Austin 2002, pet. granted, judgm’t vacated w.r.m .) (affirming

bad-faith verdict after reviewing insurer’s reasons for delay and insured’s

responsive evidence); Oram v. State Farm

Lloyds , 977 S.W.2d 163, 167 (Tex. App. C Austin 1998, no pet.) (reversing bad-faith verdict for

legal insufficiency because insurer’s interpretation of exclusion was reasonable

though incorrect).

[84] Wal‑Mart Stores, Inc. v. Canchola , 121 S.W.3d 735, 740

( Tex. 2003) (per curiam ) (noting

liability may be established by proof of discrimination plus proof employer’s

reason was pretext); Cont’l Coffee Prods.

Co. v. Cazarez , 937 S.W.2d 444, 452

( Tex. 1996) (same).

[85] See , e.g. , Univ. of Houston v.

Clark , 38 S.W.3d 578, 583 ( Tex. 2000) (noting good-faith test considers all

circumstances on which official acted).

[86] See , e.g. ,

PPG Indus., Inc. v. JMB/Houston Ctrs . Partners Ltd. P’ship , 146 S.W.3d

79, 94 (Tex. 2004) (holding no evidence supported jury verdict applying

discovery rule based on contrary evidence that claimant’s predecessor knew 3,000

windows had failed).

[87] See , e.g. , Provident Am. Ins. Co. v.

Castaneda , 988 S.W.2d 189, 194-95 ( Tex. 1998) (finding no evidence insurer denied claim in bad

faith due to conflicting medical evidence).

[88] See , e.g. , State Farm Lloyds v. Nicolau , 951 S.W.2d 444, 448

( Tex. 1997) (holding some evidence showed expert report was

pretext and thus denial of claim had no reasonable

basis).

[89] Golden Eagle Archery, Inc. v.

Jackson , 116 S.W.3d 757, 761

( Tex. 2003); Jaffe Aircraft Corp. v. Carr , 867 S.W.2d

27, 28 ( Tex. 1993); McGalliard

v. Kuhlmann , 722 S.W.2d 694, 697

( Tex. 1986); Edrington v.

Kiger , 4 Tex. 89, 93 (1849).

[90] McGalliard , 722 S.W.2d

at 697 ; Silcott v. Oglesby , 721 S.W.2d

290, 293 (Tex. 1986); Ford v. Panhandle & Santa Fe Ry . Co. , 252 S.W.2d 561, 563 (Tex. 1952) (holding it was

up to jurors “to resolve conflicts and inconsistencies in the testimony of any

one witness as well as in the testimony of different witnesses”); Houston, E.

& W.T. Ry . Co. v. Runnels , 47 S.W. 971, 972

(Tex. 1898).

[91] Turner v. KTRK Television, Inc ., 38 S.W.3d 103,

120 ( Tex. 2000).

[92] Runnels , 47 S.W. at

972 .

[93] Cochran v. Wool Growers Cent. Storage Co. , 166

S.W.2d 904, 907 ( Tex. 1942) (noting the Court “read the entire statement of

facts”).

[94] Harbin v. Seale , 461 S.W.2d 591, 594

( Tex. 1970); compare

Harbin v. Seale , 454

S.W.2d 271, 272 (Tex. Civ . App. C Dallas 1970) (reporting defendant’s testimony that he

was traveling only 40 miles per hour), rev’d ,

461 S.W.2d 591 ( Tex. 1970).

[95] MCI Telecomms . Corp. v.

Tex. Utils . Elec.

Co. , 995 S.W.2d 647, 653-54

( Tex. 1999) (holding evidence allowed jurors to disbelieve

defendant’s experts’ testimony even though plaintiff’s expert’s testimony was

shown to be in error); Runnels , 47 S.W. at 972 ; Cheatham v.

Riddle , 12 Tex. 112, 118 (1845).

[96] PPG Indus., Inc. v. JMB/Houston Ctrs . Partners Ltd. P’ship , 146 S.W.3d

79, 100 ( Tex. 2004).

[97] Anchor Cas .

Co. v. Bowers , 393

S.W.2d 168, 169-70 ( Tex. 1965).

[98] Uniroyal Goodrich

Tire Co. v. Martinez , 977 S.W.2d 328, 338

( Tex. 1998); McGalliard

v. Kuhlmann , 722 S.W.2d 694, 697

( Tex. 1986).

[99] Bentley v. Bunton , 94

S.W.3d 561, 599 ( Tex. 2002).

[100] See Tex . R.

Civ . P . 166a(c); Wal‑Mart Stores, Inc. v. Reece , 81

S.W.3d 812, 817 (Tex. 2002) (finding no evidence that store knew of puddle based

in part on uncontradicted testimony by only employee

in the area); In re Doe 4 , 19 S.W.3d 322, 325 (Tex. 2000); WFAA‑TV,

Inc. v. McLemore , 978 S.W.2d 568, 574 (Tex. 1998) (holding reporter’s

detailed explanation of foundation of report established lack of malice as

matter of law).

[101] See , e.g. , Dresser Indus., Inc. v.

Lee , 880 S.W.2d 750, 754 ( Tex. 1993); Lyons v. Millers Cas . Ins.

Co. , 866 S.W.2d 597, 601

( Tex. 1993); Biggers v.

Cont’l Bus Sys., Inc. , 303 S.W.2d 359, 365

( Tex. 1957); Howard Oil Co. v. Davis , 13 S.W. 665, 667

( Tex. 1890) (holding reviewing court must uphold jury verdict

despite strong evidence to the contrary if evidence is conflicting).

[102] See , e.g. , Gen. Motors Corp. v.

Sanchez , 997 S.W.2d 584, 592 ( Tex. 1999); Caller‑Times Publ’g

Co. v. Triad Communications, Inc ., 826 S.W.2d 576, 580

( Tex. 1992); Bendalin v.

Delgado , 406 S.W.2d 897, 899 ( Tex. 1966).

[103] Formosa Plastics Corp.

USA v. Presidio Eng'rs &

Contractors, Inc ., 960 S.W.2d 41, 48-49

( Tex. 1998).

[104] Associated Indem . Corp. v.

CAT Contracting, Inc. , 964 S.W.2d 276, 286

( Tex. 1998).

[105] White v. Southwestern Bell Tel. Co. , 651 S.W.2d

260, 262-63 ( Tex. 1983).

[106] Hall v. Med. Bldg. of

Houston , 251 S.W.2d 497, 502

( Tex. 1952).

[107] St. Joseph Hosp. v. Wolff , 94 S.W.3d 513, 542-43

( Tex. 2002) (plurality op.).

[108] T.O. Stanley Boot Co. v. Bank of

El

Paso , 847 S.W.2d

218, 221 ( Tex. 1992).

[109] Uniroyal Goodrich

Tire Co. v. Martinez , 977 S.W.2d 328, 341-42

( Tex. 1998).

[110] De Winne v. Allen , 277

S.W.2d 95, 98-99 ( Tex. 1955).

[111] Lozano v. Lozano , 52 S.W.3d 141, 144

( Tex. 2001) (per curiam );

id . at 162-63 (Hecht, J., concurring and

dissenting).

[112] See Tarrant Reg’l Water

Dist. v. Gragg , 151 S.W.3d 546, 552

( Tex. 2004); Coastal Transp . Co.

v. Crown Cent. Petroleum Corp. , 136 S.W.3d 227, 234 (Tex. 2004); Ford

Motor Co. v. Ridgway , 135 S.W.3d 598, 601 (Tex.

2004); Mobil Oil Corp. v. Ellender , 968 S.W.2d

917, 922 (Tex. 1998); Merrell Dow Pharm ., Inc. v.

Havner , 953 S.W.2d 706, 711 (Tex. 1997);

Burroughs Wellcome Co. v. Crye , 907 S.W.2d 497, 499 (Tex. 1995); Transp . Ins. Co. v. Moriel , 879 S.W.2d 10, 25 (Tex. 1994); Orozco v.

Sander , 824 S.W.2d 555, 556 (Tex. 1992); Kindred v. Con/ Chem , Inc. , 650 S.W.2d 61, 63 (Tex. 1983); Corbin v.

Safeway Stores, Inc. , 648 S.W.2d 292, 297 (Tex. 1983) (per curiam ).

[113] See William Powers, Jr. & Jack Ratliff,

Another Look at “No Evidence” & “Insufficient Evidence ,” 69

Tex . L.R. 515, 517-20 (1991).

[114] Gragg , 151 S.W.3d at

552 ; St. Joseph Hosp. v. Wolff , 94 S.W.3d 513, 519 (Tex. 2002) (plurality

op.); Southwestern Bell Mobile Sys., Inc. v. Franco , 971 S.W.2d 52, 54

(Tex. 1998) (per curiam ); Formosa Plastics Corp.

USA v. Presidio Eng’rs & Contractors, Inc. ,

960 S.W.2d 41, 48 (Tex. 1998); Havner , 953

S.W.2d at 711 ; Universe Life Ins. Co. v. Giles , 950 S.W.2d 48, 75 (Tex.

1997) (Hecht, J., concurring); Preferred Heating & Air Conditioning Co.

v. Shelby , 778 S.W.2d 67, 68 (Tex. 1989) (per curiam ); Burk Royalty Co. v. Walls , 616 S.W.2d 911,

922 (Tex. 1981); Harbin v. Seale , 461 S.W.2d 591, 592 (Tex. 1970); W.

Tel. Corp. v. McCann , 99 S.W.2d 895, 898 (Tex.

1937).

[115] See St. Joseph Hosp. , 94 S.W.3d at 519‑20 (Tex.

2002) (plurality op.); Giles , 950 S.W.2d at 51 n. 1 (citing Wininger v. Ft. Worth & D.C. Ry . Co. , 143 S.W. 1150, 1152 (Tex. 1912) and Tex.

& N.O. Ry . Co. v. Rooks , 293 S.W. 554 , 556‑57

(Tex. Comm’n . App. 1927)).

[116] Southwestern Bell Tel. Co. v. Garza , ___ S.W.3d

___, ___ ( Tex. 2004) (citing Choate v. San Antonio & A.P. Ry . , 44 S.W. 69, 69 ( Tex. 1898); Muhle v.

N.Y., T. & M. Ry . , 25 S.W. 607, 608

( Tex. 1894)).

[117] Coastal Transp . Co. v.

Crown Cent. Petroleum Corp ., 136 S.W.3d 227, 234

( Tex. 2004); Qantel Bus.

Sys., Inc. v. Custom Controls Co. , 761 S.W.2d 302, 303 (Tex. 1988); Hart

v. Van Zandt , 399 S.W.2d 791, 793 (Tex. 1965); Triangle Motors v.

Richmond , 258 S.W.2d 60, 61 (Tex. 1953); Ford v. Panhandle & Santa Fe

Ry . Co. , 252 S.W.2d 561, 562 (Tex. 1952); Anglin v. Cisco Mortgage Loan Co. , 141 S.W.2d

935, 938 (Tex. 1940).

[118] Bostrom Seating,

Inc. v. Crane Carrier Co. , 140 S.W.3d 681, 684 (Tex. 2004); S.V. v.

R.V ., 933 S.W.2d 1, 8 (Tex. 1996); Colvin v. Red Steel Co ., 682

S.W.2d 243, 245 (Tex. 1984); White v. Southwestern Bell Tel. Co. , 651

S.W.2d 260, 262 (Tex. 1983); Seideneck v.

Cal Bayreuther Assocs. , 451 S.W.2d 752, 753 (Tex.

1970); Dunagan v. Bushey , 263 S.W.2d 148, 153 (Tex. 1953); Fitz ‑Gerald v. Hull , 237 S.W.2d 256, 258 (Tex.

1951); Kelly v. McKay , 233 S.W.2d 121, 122 (Tex. 1950); White v.

White , 172 S.W.2d 295, 296 (Tex. 1943); McAfee v. Travis Gas Corp .,

153 S.W.2d 442, 445 (Tex. 1941); Wellington Oil Co. v. Maffi , 150 S.W.2d 60, 61 (Tex. 1941); Chicago, R.I.

& G. Ry . Co. v. Carter , 261 S.W. 135, 135

(Tex. Com. App. 1924, judgm’t adopted); Charles v.

El Paso Elec. Ry . Co. , 254 S.W. 1094, 1094-95

(Tex. Com. App. 1923, holding approved, judgm’t

adopted).

[119] Szczepanik v. First

S. Trust Co. , 883 S.W.2d 648, 649 ( Tex. 1994) (per curiam ); Vance

v. My Apartment Steak House of San Antonio, Inc ., 677 S.W.2d 480, 483 (Tex.

1984); Corbin v. Safeway Stores, Inc ., 648 S.W.2d 292, 295 (Tex. 1983);

Jones v. Tarrant Util. Co., 638 S.W.2d 862, 865 (Tex. 1982); Collora v. Navarro , 574 S.W.2d 65, 68 (Tex.

1978); Henderson v. Travelers Ins. Co. , 544 S.W.2d 649, 650 (Tex. 1976);

Jones v. Nafco Oil & Gas, Inc ., 380 S.W.2d

570, 574 (Tex. 1964).

[120] Act of April 25, 19 31 , 42d

Leg., R.S., ch . 77, § 1, 1931 Tex. Gen. Laws 119 ;

Myers v. Crenshaw , 137 S.W.2d 7, 13 ( Tex. 1940); Hines v. Parks , 96 S.W.2d 970, 971

( Tex. 1936). Cf . Deal v. Craven , 277 S.W. 1046,

1047 (Tex. Com. App. 1925, judgm’t adopted) (“It has

long been settled in this state that the judgment must follow the verdict, and

that the courts are without power to enter a judgment notwithstanding a verdict

upon a material issue.”).

[121] Brown v. Bank of Galveston, Nat’l Ass'n , 963 S.W.2d 511, 513 (Tex. 1998) (“[W]e consider

the evidence in the light most favorable to the verdict and reasonable

inferences that tend to support it.”); Trenholm v. Ratcliff , 646 S.W.2d 927, 931

(Tex. 1983) (“In acting on the motion [for judgment notwithstanding the

verdict], all testimony must be viewed in a light most favorable to the

party against whom the motion is sought, and every reasonable intendment

deducible from the evidence is to be indulged in that party's favor.”) (emphasis

added); Dowling v. NADW Mktg., Inc ., 631 S.W.2d 726, 728

( Tex. 1982) (same); Douglass v. Panama, Inc ., 504

S.W.2d 776, 777 ( Tex. 1974) (same); Leyva

v. Pacheco , 358 S.W.2d 547, 550 ( Tex. 1962) (same); Houston Fire & Cas . Ins. Co. v.

Walker , 260 S.W.2d 600, 603-04

( Tex. 1953) (affirming trial court’s implied disregard of one

jury answer based on “consideration of the transcript as a whole”); Burt v.

Lochausen , 249 S.W.2d 194, 199

( Tex. 1952) (“[W]e must consider all the testimony in the

record from the standpoint most favorable to the plaintiff.”) (emphasis

added); Neyland v. Brown , 170 S.W.2d

207, 211 (Tex. 1943) (considering judgment non obstante veredicto “in the light

of the record as a whole”); Le Master v. Fort Worth Transit Co. , 160

S.W.2d 224, 225 (Tex. 1942) (“[W]e must view LeMaster’s testimony, as well as all other testimony in

the record , from a standpoint most favorable to him.”) (emphasis added);

McAfee v. Travis Gas Corp ., 153 S.W.2d 442, 445 (Tex. 1941) (“[W]e must

regard the evidence contained in this record in its most favorable light for

McAfee . . . because of the instructed verdict and judgment non obstante veredicto .”); see also

Ballantyne v. Champion Builders, Inc ., 144 S.W.3d

417, 424-29 (Tex. 2004) (upholding judgment non obstante veredicto based on

conclusive evidence contrary to verdict).

[122] See Tiller v. McLure ,

121 S.W.3d 709, 713 ( Tex. 2003) (per curiam );

Wal‑Mart Stores, Inc. v. Miller , 102 S.W.3d 706, 709

( Tex. 2003) (per curiam ); Mancorp , Inc. v. Culpepper , 802 S.W.2d 226,

227 ( Tex. 1990); Best v. Ryan Auto Group, Inc ., 786 S.W.2d

670, 671 ( Tex. 1990) (per curiam ); Navarette v. Temple Indep . Sch . Dist ., 706 S.W.2d 308, 309

( Tex. 1986); Tomlinson v. Jones , 677 S.W.2d 490, 492

( Tex. 1984); Williams v. Bennett , 610 S.W.2d 144, 145

( Tex. 1980); Freeman v. Tex. Comp. Ins. Co. , 603

S.W.2d 186, 191 ( Tex. 1980); Dodd v.

Tex. Farm Prods. Co. , 576 S.W.2d 812, 814-15

( Tex. 1979); Campbell v. Northwestern Nat’l Life Ins. Co. , 573 S.W.2d 496, 497

( Tex. 1978); Miller v. Bock Laundry Mach. Co. , 568

S.W.2d 648, 650 ( Tex. 1977); Sobel v.

Jenkins , 477 S.W.2d 863, 865 ( Tex. 1972); C. & R. Transp ., Inc. v. Campbell , 406 S.W.2d 191, 193

( Tex. 1966).

[123] See Tiller , 121 S.W.3d at 713 (citing

Bradford v. Vento , 48 S.W.3d 749, 754 ( Tex. 2001)); Miller , 102 S.W.3d at 709 (same);

Best , 786 S.W.2d at 671 (citing King v. Bauer , 688 S.W.2d 845, 846

( Tex. 1985)); Tomlinson , 677 S.W.2d at 492 (citing

Glover v. Tex. Gen. Indem .

Co. , 619 S.W.2d 400, 401

( Tex. 1981)); C ampbell , 573 S.W.2d at 497 (citing Martinez v. Delta Brands,

Inc ., 515 S.W.2d 263, 265 ( Tex. 1974)); Campbell , 406 S.W.2d at 193 (citing Cartwright v. Canode , 171 S.W. 696, 697-98

( Tex. 1914)).

[124] IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v.

Mason , 143 S.W.3d 794 , 798 (Tex. 2004); Provident Life & Accident

Ins. Co. v. Knott , 128 S.W.3d 211, 215-16 (Tex. 2003); Wal‑Mart Stores,

Inc. v. Rodriguez , 92 S.W.3d 502, 506 (Tex. 2002); Gonzalez v. Mission

Am. Ins. Co. , 795 S.W.2d 734, 736 (Tex. 1990); Bayouth v. Lion Oil Co. , 671 S.W.2d 867, 868

(Tex. 1984).

[125] See Tex . R.

Civ . P . 166a( i ).

[126] 530 U.S. 133, 150 (2000).

[127] Fed . R.

Civ . P. 50(a)(1).

[128] 336 U.S. 53 (1949).

[129] Id . at 57.

[130] Reeves , 530

U.S. at 149-50 (citations

omitted).

[131] Carter v. Steverson &

Co. , 106 S.W.3d 161, 166 (Tex. App. C Houston [1st Dist.] 2003, pet. denied) (emphasis added)

(citation omitted); accord Long v. Long , 144 S.W.3d 64, 67 (Tex.

App. C El Paso 2004, no pet.); Gore v. Scotland Golf,

Inc ., 136 S.W.3d 26, 29 (Tex. App. C San Antonio 2003, pet. denied); Exxon Corp. v. Breezevale Ltd. , 82 S.W.3d 429, 438 (Tex.

App. C Dallas 2002, pet. denied); N. Am. Van Lines, Inc. v.

Emmons , 50 S.W.3d 103 , 113 n.3 (Tex. App. C Beaumont 2001, pet. denied); Molina v. Moore , 33

S.W.3d 323, 329 (Tex. App. C Amarillo 2000, no pet.); Wal‑Mart Stores, Inc. v.

Itz , 21 S.W.3d 456 , 470 n.3 (Tex. App. C Austin 2000, pet. denied); see also In re King's

Estate , 244 S.W.2d 660, 661 (Tex. 1951) (per curiam ) (holding court of appeals erred in failing to

distinguish between legal and factual sufficiency review by not weighing all the

evidence when conducting the latter).

[132] Burk Royalty Co. v. Walls , 616 S.W.2d 911, 922

(Tex. 1981) (noting that review of gross negligence finding by considering all

the evidence appeared to but did not conflict with traditional no-evidence

test).

[133] Dorsaneo , supra note

10, at 1503; see also Hardberger , supra

note 10, at 17 (arguing exclusive standard is “designed to afford high

deference to jury verdicts”).

[134] State v. Biggar , 873

S.W.2d 11, 13 ( Tex. 1994).

[135] See , e.g. ,

CMH Homes, Inc. v. Daenen , 15 S.W.3d

97, 102 (Tex. 2000) (noting plaintiff argued defendant’s frequent inspections of

stairs showed knowledge of inherent danger, while court held it showed the

opposite as inspections found nothing); State Farm Fire & Cas . Co. v. Simmons , 963 S.W.2d 42, 45

( Tex. 1998) (affirming bad-faith verdict after noting

insurer’s reasons for denial were contradictory).

[136] See , e.g. , Wal-Mart Stores, Inc. v.

Alexander , 868 S.W.2d 322, 327 ( Tex. 1993) (noting evidence of single previous minor stumble

supported negligence finding but not gross

negligence).

[137] See Judith Resnik ,

Managerial Judges , 96 Harv. L.R.

374, 382-83 (1982) (noting that images of justice appeared blindfolded

only within the last four hundred years).

[138] Justice Calvert’s use of the masculine in 1960 may

perhaps be forgiven, for although Hattie Hennenberg ,

Hortense Ward, and Ruth Brazzil served temporarily on this Court in 1925, and Sarah

T. Hughes was appointed as a state district judge ten years later, it was not

until 1954 that the Texas Constitution was amended to allow women to serve as

jurors, and not until 1973 that Mary Lou Robinson became the first women to

serve as a state appellate judge. See James T. “Jim” Worthen , The Organizational & Structural Development

of Intermediate Appellate Courts in Texas , 46 S.

Tex . L.

Rev . 33, 75 (2004); Robert L. Dabney ,

Jr. We Were There , Houston B.J. Nov.-Dec. 1999, at 42, 44.

[139] Calvert, supra note 12, at

364.

[140] Wilkerson v. McCarthy , 336

U.S. 53, 65 (1949) (Frankfurter, J.,

concurring).

[141] 86 S.W.3d 693, 709 .

[142] Id . at 703, 705.

[143] Id . at 705.

[144] Id . at 704-05.

[145] Provident Am. Ins. Co. v. Castañeda , 988 S.W.2d 189, 194-95 (Tex. 1998); see

also State Farm Lloyds v. Nicolau , 951 S.W.2d 444,

448 (Tex. 1997) (holding reliance on expert report did not foreclose bad‑faith

claim because claimant “presented evidence from which a fact‑finder could

logically infer that Haag's reports were not objectively prepared, that State

Farm was aware of Haag's lack of objectivity, and that State Farm's reliance on

the reports was merely pretextual .”).

[146] Cf. Nissan Motor Co. Ltd. v. Armstrong , 145

S.W.3d 131, 140 ( Tex. 2004) (holding complaint letters may require

manufacturer to investigate, but are not evidence complaints are

true).

[147] Tarrant Reg’l Water Dist.

v. Gragg , 151 S.W.3d 546, 555

( Tex. 2004) (emphasis

added).