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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, or if contrary evidence renders supporting evidence incompetent or conclusively establishes the opposite.
The owners contended that the city approved revised plans that it knew were certain to have the effect of flooding their land. To recover damages for inverse condemnation, the owners had to prove that the city intentionally took or damaged their property for public use, or was substantially certain that would be the result. The owners did not allege that the city intentionally flooded their land, but did allege it approved revised plans that it knew were substantially certain to have that effect. The city contended that no evidence supported 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 -- including the ban against increasing downstream runoff. The court of appeals rejected the city’s contention, refusing to consider the various engineers’ certifications. The city challenged the omission as applying the wrong scope of review.
Did the appellate court apply the wrong scope of review when it refused to consider the engineers’ certifications?
The court reversed the judgment, holding that the court of appeals did not properly apply the scope of review in that the critical question was the city's state of mind because the owners had to prove the city knew that flooding was substantially certain, and the court of appeals disregarded the evidence regarding why the city approved the plan. It was uncontroverted that three sets of engineers certified that the revised plans met the city's codes and regulations, and thus would not increase downstream flooding. Further, the court of appeals declined to address the jury's alternate verdict on a claim under the Texas Water Code.