Standards of Review 2012

Standards of ReviewMaitreya Tomlinson September 5, 2012

04/13/2023 Copyright © 2011 Smith Law Group, P.C.

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Everything You Need to Know…


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Why Are SORs Important?

• Define relationship between trial and appellate courts

• Appellate court’s measuring stick: frame the issues, define the depth of review, assign power among judicial actors

• Shape your arguments• A litigant who is unfamiliar with “the standard of

review for each issue . . . may find himself trying to run for a touchdown when the basketball rules are in effect.” John C. Goldbold, 11th Cir.


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Standard v. Scope

• Standard of review– Framework by which a reviewing court

determines whether the trial court erred• Scope of review

– Portion of the appellate record a reviewing court may examine to determine whether the trial court erred

• Concepts are interrelated and affect each other


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The Major Civil Standards

• De novo– Applies to relatively few trial court rulings

• Abuse of discretion– Most frequently used (and misused)

• Evidentiary sufficiency (legal and factual)– Has undergone significant changes since City of

Keller, which are important and which also may affect the scope of review of no-evidence summary judgments in the future


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De Novo Review

• Pure questions of law: no deference afforded to the trial court’s decision– E.g., contract construction/determination of whether

contract or will is ambiguous– Subject Matter Jurisdiction

• Reviewing court will re-determine questions of fact or law under de novo review

• Grant of summary judgment? – Review trial court’s ruling de novo—no deference– Scope of review: view the evidence in the light most

favorable to the nonmovant

Abuse of Discretion Defined

•Usually defined as:– Decision that is “arbitrary, unreasonable, and

without reference to any guiding rules or principles”

– “So arbitrary and unreasonable as to amount to a clear and prejudicial error of law”

– Whether, in the reviewing court’s opinion, the facts present an appropriate case for the trial court’s action


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Abuse of Discretion

• Most commonly used/misused standard of review– “[The abuse of discretion formulation] does not aid the

appellate courts who struggle for consistency while applying a standard so amorphous that it means everything and nothing at the same time; nor the trial courts who must guide their conduct in future cases by what the appellate courts have said and decided in applying a standard that lacks any discernable content standing alone.” Landon v. Jean-Paul Budinger, Inc., 724 S.W.2d 931, 935 (Tex. App.—Austin 1987, no writ).


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4 Ways to Abuse Discretion

• 1. Court attempts to exercise a power it does not legally possess

• 2. Court declines to exercise a power vested to it by law when the circumstances require that power to be exercised


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4 Ways to Abuse Discretion

• 3. Court purports to exercise discretion without sufficient information upon which a rational decision can be made

• 4. Court exercises its power by making an erroneous choice as a matter of law by:– Making a choice outside the range of choices

allowed– Arriving at choice by violating applicable legal

principle– Making a choice that is legally unreasonable in

the factual-legal context


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5 Steps for Analyzing Abuse of Discretion

• Discretion implies a choice. Abuse of discretion means there was only one choice, and the choice made was wrong.

• Question 1: Legal support for the decision?– Determine what law applies. No discretion!– Good faith argument for a change in the law? Court

can abuse its discretion by failing to apply law that ISN’T CLEAR OR DOESN’T EXIST AT THE TIME.• “[A] trial court's “erroneous legal conclusion, even in an unsettled area of law, is an abuse of discretion.” Perry v. Del Rio, 66 S.W.3d 239, 257 (Tex. 2001).


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• Question 2: Does the law provide the trial court with power to act? – Jurisdiction– Any law precluding action on the matter?

• Question 3: If the law allows the trial court to act, does the law explain how the action must be taken?– Range of actions available to the trial court– Notice provisions? Hearing required? Evidentiary or

non-evidentiary?– Scope of review is in play: what can court consider?


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• Question 4: Given what the court was entitled to consider (scope of review), did the court have sufficient information to make the decision it did?– Legal and factual sufficiency?– These overlap the abuse of discretion

standard of review in many types of cases, e.g., family law

• Question 5: Did the trial court apply the law to the facts in the correct manner to reach the decision?


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Legal Sufficiency—City of Keller

• Traditional statement of standard: Evidence is legally insufficient if:– There is a complete absence of evidence of a

vital fact– The court is barred by rules of law or evidence

from giving weight to the only evidence offered to prove a vital fact

– The evidence offered to prove a vital fact is no more than a “mere scintilla”

– The evidence establishes conclusively the opposite of a vital fact


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Inclusive v. Exclusive Standard

• Before City of Keller, courts were using both an inclusive and an exclusive standard– Exclusive: court considers only the evidence and

inferences that tend to support the finding and disregards all contrary evidence and inferences

– Inclusive: court considers all the evidence in the record in a light most favorable to the jury verdict, and indulges every reasonable inference in favor of the verdict

• Question presented: “Must an appellate court reviewing a verdict for legal sufficiency start by considering all the evidence or only part?”


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What City of Keller Means

• Commentators said the standards were different; City of Keller says both of these are correct and arrive at the same result

• City of Keller’s reformulated standard: whether you review all the evidence or only evidence supporting the verdict, proper legal sufficiency review must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not


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When to Consider Contrary Evidence

• Court said the rule has never been that courts must reject all contrary evidence in a no-evidence review. Must consider it if:– There is no favorable evidence– Contrary evidence provides context that must be

considered– Contrary evidence renders supporting evidence

incompetent– Despite favorable evidence, the contrary evidence

establishes conclusively the opposite of a vital fact

• Court then gave a series of examples of contrary evidence that cannot be disregarded


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Type 1: Contextual Evidence

• Defamation cases: court must consider the entire publication to determine falsity– E.g., review accompanying statements, headlines,

pictures, and the general tenor and reputation of the source itself

– “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.”

• Contracts: reviewed as a whole– “We do not consider only the parts favoring one party

and disregard the remainder, as that would render the latter meaningless.”


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Type 1: Contextual Evidence

• Intentional Infliction of Emotional Distress– “We consider the context and the relationship between

the parties.”

– “Acts that might constitute outrageous conduct when dealing with a hearing-impaired consumer may be legally insufficient between business parties.”

– “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.”


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Type 2: Competency Evidence

• Incompetent evidence is insufficient, even without objection

• Proof that favorable evidence is incompetent cannot be disregarded because “If the rule were otherwise, incompetent evidence would always be legally sufficient, because the evidence showing it to be incompetent could never be considered.”– Eyewitness testimony disproved by location– Facts showing expert testimony unreliable


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Type 3: Circumstantial Equal Evidence

• This is Chief Justice Calvert’s “scintilla rule”• “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.”

– Cart Tracks in the Macaroni Salad Example

• “When the circumstances are equally consistent with either of two facts, neither fact may be inferred.”


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Type 4: Conclusive Evidence

• Court discusses two types of conclusive evidence: undisputed and disputed. But are they really different?

• Cannot “disregard undisputed evidence that allows of only one logical inference”– 2 layers: (1) was the evidence disputed? (2) was

there one logical inference from it?– Undisputed evidence that jurors could disbelieve has

two inferences: (1) it’s true; (2) it’s not true

• Most frequent scenario for undisputed evidence is physical evidence that cannot be denied


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• Undisputed contrary evidence can become conclusive when party admits it’s true– A claimant's admission that he was aware of a

dangerous premises condition is conclusive evidence he needed no warning about it

– An ex-employee's admission that she obtained other employment may prove conclusively that she did not detrimentally rely on a promise to re-hire her

– 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


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• So far so good, right? Then the curve ball: – “There is another category of conclusive evidence, in

which the evidence is disputed. Undisputed evidence and conclusive evidence are not the same—undisputed evidence may or may not be conclusive, and conclusive evidence may or may not be undisputed.” Say what?

• Court appears to apply some of the same rules to disputed evidence as to undisputed evidence:– Physical facts that cannot be denied: i.e. DNA– Eyewitness/competency: if driver couldn’t see the

slow-moving train, crossing sign wouldn’t have helped

No-Evidence Summary Judgments

• What effect does City of Keller have on no-evidence summary judgments? Unanswered question…

• Binur v. Jacobo: scope of review in no-evidence summary judgment requires court to disregard evidence submitted by the movant, unless that evidence raises a fact issue favoring nonmovant.

• Example: Can you attach evidence to a NEMSJ or response to prove evidence is incompetent? Under Binur, the answer is no.


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Factual Sufficiency

• Review all the evidence in the record• Either “insufficient evidence” or “great weight and

preponderance of the evidence” arguments, based on which party bore burden of proof at trial– If appellant is attacking adverse finding on issue

that other party had burden to prove, argument must be that the evidence is insufficient to support the finding

– If appellant bore the burden of proof, argument must be that the evidence supporting the adverse finding is against the great weight…


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Criminal Cases: Sufficiency of the Evidence

• After the recent decision in Brooks v. State, there is only one test for sufficiency of the evidence in criminal cases:– Considering all of the evidence in the light most

favorable to the verdict, was a jury rationally justified in finding guilt beyond a reasonable doubt?

• CCA overruled Clewis v. State, which provided for a factual sufficiency review of the evidence supporting a conviction: viewing the evidence in a neutral light, was a rational jury justified in finding guilt beyond a reasonable doubt?


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Future of Factual Sufficiency in Civil Cases

• Factual sufficiency is a relatively infrequent basis of reversal when evidence conflicts

• Comes up in reviewing jury findings on damages or segregation of attorney fees, e.g., some evidence of damages/fees, but not within the range of evidence offered

• Reviewing “reasonableness” of verdicts looks like factual sufficiency review, which SCOTX has no jurisdiction to perform

• Fate of factual sufficiency depends on how far City of Keller goes


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Standards of ReviewMaitreya Tomlinson September 5, 2012

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Standards of Review 2012