Standards of Review 2012

Standards of Review
Maitreya Tomlinson September 5, 2012

Everything You Need to Know…

9/30/2012 Copyright © 2011 Smith Law Group, P.C.

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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


5

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

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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
9/30/2012
latter meaningless.‖ Copyright © 2011 Smith Law Group, P.C.

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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

24

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.


25

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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