law-factual-sufficiency-review-on-appeal | legal sufficiency point of error on appeal |
A motion for new trial is a prerequisite to raising a complaint of factual sufficiency on appeal. TEX. R.
CIV. P. 324(b)(2); Cecil v. Smith, 804 S.W.2d 509, 510–11 (Tex. 1991)).
FACTUAL SUFFICIENCY REVIEW ON APPEAL
When reviewing a challenge to the factual sufficiency of the evidence, we examine the entire record,
considering both the evidence in favor of, and contrary to, the challenged finding. Cain v. Bain, 709 S.W.
2d 175, 176 (Tex. 1986). After considering and weighing all the evidence, we set aside the fact finding
only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.
Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). The trier of fact is the sole judge of the
credibility of the witnesses and the weight to be given to their testimony. GTE Mobilnet of S. Tex. v.
Pascouet, 61 S.W.3d 599, 615-16 (Tex. App.- Houston [14th Dist.] 2001, pet. denied). We may not
substitute our own judgment for that of the trier of fact, even if we would reach a different answer on the
evidence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998). The amount of evidence
necessary to affirm a judgment is far less than that necessary to reverse a judgment. Pascouet, 61 S.W.
3d at 616.
Smith v. Hartford Underwriters Ins. Co. (Tex.App.- Houston [14th Dist.] Oct. 6, 2009)(Frost)
(workers compensation appeal by both sides, compensable injury)
AFFIRMED: Opinion by Justice Frost
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-00133-CV Janice Smith v. Hartford Underwriters Insurance Company
Appeal from 234th District Court of Harris County
Trial Court Judge: Reese Rondon
In a factual sufficiency review, we must consider and weigh all of the evidence both supporting and
contradicting the finding in question. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.
1989). We may set aside the jury's finding only if it is so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.
2001). We may not pass upon the credibility of the witnesses, or substitute our judgment for the jury's,
even if the evidence could support a different result. Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407
(Tex. 1998). The amount of evidence necessary to affirm a judgment is far less than that needed to
reverse it. GTE Mobilnet of S. Tex. Ltd. P'ship v. Pascouet, 61 S.W.3d 599, 616 (Tex. App.- Houston
[14th Dist.] 2001, pet. denied). Thus, when we reverse a judgment for factual insufficiency, we must
outline the evidence pertinent to the issue and explain how the contrary evidence greatly outweighs the
evidence favoring the judgment, but we need not do so when affirming the jury's verdict. Gonzalez v.
McAllen Med. Ctr., Inc., 195 S.W.3d 680, 681 (Tex. 2006); Ellis, 971 S.W.2d at 407.
Robertson v. Barnes (Tex.App.- Houston [14th Dist.] July 30, 2009)(Sullivan)
(home owner, consumer law, DTPA, home in poor condition, stucco problem, seller was not required to
disclose prior water damage because repair was not "structural" which the court construes as referring to
load-bearing)
AFFIRMED: Opinion by Justice Sullivan
Before Justices Brock Yates, Guzman and Sullivan
14-07-00791-CV Chris Robertson v. Joe Barnes and Sandion, Ltd d/b/a Coldwell Banker United,
Realtors
Appeal from 280th District Court of Harris County
Trial Court Judge: TONY LINDSAY
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