*2 PRESSLER, PAUL Before MURPHY changed. ROBERTSON,
and JJ. workers’ Bluebonnet’s On March automobile general liability, compensation, MURPHY, Justice. were damage policies liability physical rehearing filed a motion Appellant premium lev- from the “standard converted an en banc a motion for considera- also for- plan” premium to another el dividend presented by procedural tion issues D.” “retrospective plan known as mula grant We motion of deter- retrospective Under method opinion, former set rehearing, withdraw our estimated Wausau first mining premiums, mo- judgment, deny former aside our policy. on each premium due the annual consideration, en sub- tion for an banc estimate, with “standard synonymous February one of opinion for the stitute poli- appeared on the face premium,” 24, 1983. premium.” annual cies as a “total estimated n year, Wausau (Bluebonnet) end of Express, policy Inc. At the each under actual claims the trial court’s in favor considered Bluebonnet’s appeals ad- during prior year (Wau- policy Insurance of Wausau each Employers accordingly. $52,155.12 justed premium estimated costs each sau) plus amount of The Wausau salesman who direct had deal- Plaintiff’s Exhibit 7: of Blue- Statement ings with fi- Bluebonnet testified bonnet’s account the period 1-2- due, nal premium adjustment after 8-1-74, showing 71 to dates of transac- during pertinent claims could period, numbers, tions, charges, invoice credits range a minimum of of the esti- 65% $52,- gross and a “final amount due” *3 low, premium, mated if to a losses were 155.12; premi- maximum of 135% of the estimated Plaintiff’s Exhibit 8: Combination Cas- um, high. Therefore, if losses were the ualty 1621-00-047877, Policy No. esti- year losses incurred the during prior had $13,198.00, of premium pol- mated annual direct effect on the multiplier choice of the 3-1-71; icy period from 3-1-70 to range within the of 65% to 135%. Plaintiff’s Exhibit 9: Combination Cas- brought Wausau suit on a sworn account ualty Policy 1622-00-047877, No. esti- under Tex.R.Civ.P. 185 to recover amounts $46,157.00 premium poli- mated annual allegedly due as retrospectively calculated cy period 3-1-71 (Dupli- from to 3-1-72. policies under twelve issued 4). cate of Plaintiff’s Exhibit No. Bluebonnet the period 1970 to March Plaintiff’s Exhibits 1-6 were admitted March 1972. Bluebonnet ver- proper filed a into no objection evidence with by Bluebon- 93(k). ified denial under Tex.R.Civ.P. net’s counsel. Trial was to the court. The evidence The contents of Plaintiff’s Exhibit consisted of testimony employees two suit, brought which Wausau Wausau and the following documents: and the circumstances under which it was Plaintiffs Exhibit 1: Standard Work- admitted into evidence deserve careful men’s Compensation and Lia- Employers’ analysis. The balance due as shown bility Insurance Policy No. 1612-00- $52,155.12, document was the same amount 047877, estimated premium annual awarded by trial court. $12,821.00, policy period from 3-1-71 to 3-1-72; Initially account was excluded on sev- eral grounds, including lack of proper predi- Plaintiff’s Exhibit 2: Standard Work- cate, hearsay, irrelevance, and the best evi- Compensation men’s and Employers’ Li- (i.e., dence original rule invoices ability Policy Insurance No. 1619-00- ledger and not summary sheet would have 047877, estimated premium annual claims.) been the best evidence of Af- $14,707.00, policy period from 3-1-69 ter 3-1-70; supposedly Plaintiff’s Exhibit 7 had been associated with by Bluebonnet the tes- Plaintiff’s Exhibit 3: Standard Work- Marsalis, timony of Jack a Wausau sales- men’s Compensation Employers’ Li- man charge who was in of Bluebonnet’s ability Policy Insurance 1611-00- No. policies, following interchange occurred: 047877, estimated annual premium $13,906.00, policy period Honor, from 3-1-70 to PLAINTIFF’S COUNSEL: Your 3-1-71; again offer would Plaintiff’s Exhibit 4; No. 7. The witness had Plaintiff’s Exhibit identified it as Combination Cas- ualty Policy 1622-00-047877, No. document received Bluebonnet Ex- esti- Groves, premium press, that he received a $46,157.00, copy mated annual Mr. pol- 3-1-72; showing of it icy period 3-1-71 to amount due from account. Plaintiff’s Exhibit 5: Demand letter
dated 10-9-72 from Regional Wausau’s DEFENDANT’S COUNSEL: Your Hon- Manager Credit to Bluebonnet or, reurge objections we would as to $74,529.00; sum the hearsay rule and as to the best evi- 6: though, Plaintiff’s Exhibit dence rule. I would have to say, Demand letter dated 3-22-72 from Regional up Wausau’s this document has been connected now, Manager Credit to my client and it seem to $44,286.40; sum of me it probably is admissible for the Just so I DEFENDANT’S COUNSEL: sole reason that is an instrument received this, Honor, objec- my am clear on Your showing client what Mr. Edwards my $75,000 the fact that neither the tion is due, alleges is but not for the truth of $52,000 figure has been figure nor anything contained therein. know, client. far as we my tied to So it for that permit THE I will COURT: instrument simply instrument added). reason.... (emphasis forth in passed that has been back and explained that the com- The witness then anything to do Wausau. It doesn’t retrospective by the putations performed point. all at this my client at in late 1973 and plan D method I understand. It has his THE COURT: of the balance for the reduction accounted counting gentle- on this name on it. am account, $75,- due, as shown on the later, (emphasis added). it in tying man $52,155.12. The witness then ac- 360.90 to *4 explanation resumed his Ex- When Mr. Marsalis dire that Plaintiffs knowledged on voir the reduction in the account balance allegedly about 7 could not be the document hibit adjust- retrospective plan D because of Jack of Bluebonnet received Groves entries, ments, interjected: the court 30, 1973 since a number of January that credits, made after including were he is I understand what THE COURT: occurred following exchange date. The it down from saying, and that reduced a further limitation placed when the court $52,155.12,according $75,360 down value: probative on the document’s accepting gentleman. I am not to this You testi- COUNSEL: DEFENDANT’S asserted. truth of the matter that as the had, your that Mr. Groves fied earlier gentle- accepting that as what this I am said, on or the document knowledge, received added). (emphasis man has January 30th, cor- 1973. Isn’t that about thereafter, following occurred: Shortly rect? From those PLAINTIFF’S COUNSEL: sim- I did. He received one MARSALIS: you, see there in front of policies you that ilar, was not this one. but it adjust- the retro possible is it to calculate It was not DEFENDANT’S COUNSEL: ad- account sheet that is ments on that this document? sir, you, just front of from mitted in No. MARSALIS: got? policies you that Your Hon- DEFENDANT’S COUNSEL: no. policies, from the Just MARSALIS: we testimony, or, the basis of that What else COUNSEL: PLAINTIFF’S of Plaintiff’s the admission move to strike to deter- person need order would a Exhibit 7. that contract whether or not that mine Honor, Your PLAINTIFF’S COUNSEL: policies form of those see there you purpose the limited offer this for we not, or sir? complied has been balance, not the account showing losses would The incurred MARSALIS: amount, so that only but they owe tax policies... not show on the fig- why could tell us gentlemen Yes, factors are is here. all the factor compa- from what the dropped down ures the incurred losses. except here they owed to what said Bluebonnet ny is And that PLAINTIFF’S COUNSEL: now, position say is in a since he are state, information obtained from the am the credits. got the insured why correct? it in with permit I will THE COURT: Yes, sir. MARSALIS: letting but I am not purpose, limited Each and ev- PLAINTIFF’S COUNSEL: Mr. received instrument it in as the sold to policies you ery one Mainly like it. It is one Jack Groves. con- approved ... were those variance discovering the purpose of Texas or not? by the State tracts $52,- $75,000 and the figure between Yes, sir. MARSALIS: figure. 155.12 It already gotten testimony is a lot of clear that the testimonial and docu- mentary up prior go evidence introduced to this the way you witness that the trial contained several limita- computation, about we have losses and probative tions on its pre- value. The final gotten reserves. haven’t testi- We miums under due the four in evi- policies about what mony whatsoever losses dence eight and the policies not gentleman what doesn’t reserves. computed could not be retrospec- under the as a who has knowl- qualify gentleman tive rating method without additional data of what the losses and reserves are. edge relating (1) each policy: the amount of Therefore, ques- his answers to the last incurred losses for policy period, (2) tion has to be hearsay, and at- [sic] precise multiplier chosen in the range tempted statement that this is an accurate between 65% and 135%. Plaintiffs Exhibit and true statement of the 7 was not admitted the truth of its we hearsay. And move that it be strick- assertions, including contents or the fact addition, reurge en. an earli- that Bluebonnet was connected with it in objection er to Plaintiff’s Exhibit No. 7 way, even to show that Wausau appears this exhibit be a actually “gross claimed the due” amount summary ap- of other documents which $52,155.12, but merely pur- for the limited existence, as a parently have been pose allowing explain the witness to summary, it not admissible unless “gross $75,- reduction in amount due” from are made available here in materials *5 $52,155.12. Furthermore, 360.00 to it was examination, for Your purpose established that Plaintiffs Exhibit was Honor ... not the document received Bluebonnet. Honor, Your COUNSEL: APPELLEE’S An entry by entry analysis of Plaintiffs he That he stating. is all can. [sic] Exhibit 7 only reveals that a few debits and saying goes He is that and weight positively credits can be pol- connected with credibility testimony. of the man’s evidence, icies in that a number of the I going THE COURT: am him let entries policies evidence, refer to not in testify as what the record reflects. that most entries cannot be identified with I what the record reflects and will Show all.
certainty at permit that in. The second and final witness was John P. ATTORNEY: does APPELLEE’S What Jr., Hiegel, Regional Manager Credit reflect, sir, the record on the net balance Wausau since 1980. Mr. Although Hiegel due? brought copies policies of all to Blue- sold It a net MR. HIEGEL: shows balance bonnet, Appellee’s attorney only offered $52,155.12. due of them, two of Plaintiffs Exhibits 8 and Sir, ATTORNEY: when APPELLEE’S into evidence. The court them admitted arose, dispute knowledge, to your this purpose the limited proving those two was was file that established on Blue- policies had been issued to Bluebonnet. bonnet referred out to local counsel
Shortly thereafter, Mr. Hiegel purpose prosecuting testified Bluebonnet that the account balance owed Bluebon- or delinquency for the not?
net, as depicted by Plaintiff’s Exhibit APPELLANT’S ATTORNEY: Your object- accurate. Bluebonnets’ counsel Honor, testimony in this case is that ed to that testimony following oc- gentleman manager has been a credit curred: year something or like that. This
APPELLANT’S COUNSEL: Your Hon- arose in 1971and ’72 dispute back accord- or, object Therefore, we testimony. on that answer. It has to ing to unless hearsay. be gentleman This his can be with gentleman up connected [sic] hasn’t given predicate us in time period, frame- the facts existence that work which suggest testimony to base must be this conclusion that object. this is an accurate I would hearsay^ balance. We and we voir witness on dire illustrate, to take the glad previously quoted passages Appel- that. clarify lay any
further
lant did not
additional procedural
predicates, such as a motion for judgment
it quickly,
If
will do
you
THE COURT:
trial,
or motion for
in the trial court in
new
has
I realize that he
will
that.
permit
preparation
asserting legal insufficiency
for about a
company
for the
only worked
Furthermore,
used the
points.
Appellant
nothing
preceeded
so he knows
year,
phrase, “rendering judgment,” in all four
is in the record.
except what
period
The absence of
error.
Is that correct?
phrase
the use of this catch
motions and
That is correct.
MR. HIEGEL:
will
procedural
constitute the
issues we
fault
I don’t
THE COURT:
address.
(emphasis
in.
records
letting the
with
added).
LEGAL OR FACTUAL SUFFI-
RAISING
of the two wit-
testimony
Based on the
THE EVIDENCE
CIENCY OF
exhibits, the
plaintiff’s
the nine
nesses and
background to the most recent
By way of
in favor
trial court entered
the Texas
change
wording,
$52,155.12, the
in the amount of
January
that effective
Court had noted
as shown
amount due”
gross
“final
to eliminate
Rule 324 was amended
Plaintiff’s Exhibit
new
making
a motion for
necessity
of error.
assigns
six
complain
alleged
prerequisite
as a
four,
the first
only
nonjury
reach
appeal,
We need
trial court errors on
in “render-
court error
jury
assert trial
cases. Howell
Coca-
summary
even most
Lubbock, Inc.,
for addi-
of Wausau
judgment”
Bottling Company
in favor
ing
Cola
curiam);
policies
(Tex.1980) (per
the four
due under
premiums
tional
evidence,
refusing
be-
(1978).
into
While
which were introduced
Tex.R.Civ.P.
error, finding
or insuf-
for writ of
application
either no evidence
Howell
cause there was
error,
spe-
no reversible
of standard
ficient evidence
eight
portion
losses;
cifically disapproved
respect
incurred
*6
evidence,
opinion “which holds
Appel-
Appeals
Court of Civil
into
introduced
policies not
in a
required
plaintiff
“rendering
that Rule 324 ...
error
trial court
lant asserts
new
to file a motion for
non-jury
there
action
when
favor of Wausau
judgment”
alleged
preserve
to
predicate
of
trial as a
or insufficient
no evidence
pertinent
The
at 801.
error.” 599 S.W.2d
calculating the
of
the method
which was
the lower court decision
part of
premi-
additional
and of the fact
disapproved stated:
ums were due.
circumstances
in certain unusual
Except
procedural
both
This case contains
here,
appellant
must be
pertinent
not
must
evidentiary issues. Since
before
in the record
able to demonstrate
be-
obstacles
procedural
certain
surmount
the error com-
appellate
court that
evidentiary
reach the
it is
to
possible
fore
to, rejected by
presented
of was
plained
procedural
we will consider
questions,
Spe-
in the trial court ...
preserved
first.
aspects
right
party
a
is denied the
cifically, where
to
first case
be the
this to
We believe
special excep-
after a
pleadings
to amend
rais-
requirements
procedural
interpret
not
sustained,
does
and the record
tion is
evidence”) and
insufficiency (“no
ing legal
fact,
a motion
reflect
otherwise
evi-
(“insufficient
insufficiency
factual
the error
preserve
to
required
new trial is
from a
on
of error
dence”) points
court does
record before this
. .. The
to
1981 amendment
under the
trial
non-jury
mo-
error advanced. No
not
preserve
Tex.R.Civ.P.
nothing
filed and
new trial was
tion for
a
demonstrates
before us
in the record
in this
counsel
Although Appellant’s
We are
...
right
to amend
to
denial
objections
lengthy
non-jury case made
error.
evidence,
willing
presume
not
as the
certain
of
the admission
Howell v.
Co.
Bottling
Coca-Cola
of Lub
....
If the
opinion
[Howell ]
bock,
208,
(Tex.Civ.
213-214
is read as dispensing
require-
with the
1980) (emphasis added).
App.
ment
a party
must make known his
— Amarillo
position to the trial court before com-
of
disapproving
quoted portion
plaining
judgment,
of an adverse
then a
Appeals opinion,
Amarillo Court
Civil
major uncertainty has been created con-
Brock,
which was consistent with Brock v.
cerning the extent of complaints that
(Tex.Civ.App.
It is one In thing to the say past attorneys courts and have a motion for new trial is complex not a labored prerequisite proce- under and technical to appeal if appellant the has requirements raising not dural for preserved legal insuffi- otherwise his point jury for on from appeal ciency points appeal error by presenting his position See, Calvert, “No e.g., to trials. Evidence” the trial court. quite It another Er- say to Evidence” Points of that if he “Insufficient present- has not O’Connor, position ror, ed his (1960); 38 Texas L.Rev. 361 judgment before is ren- against him, Appeal, dered Tex.B.J. he Evidence Points on 37 need not do so afterward, by (1974), motion for in 12 Hous.L.Rev. reprinted new 839 trial or otherwise, to complain (1974). gone by, order to raise years 65 of the Unnecessary Exceptions 1. Rule 373. objection or his desires the court to take exceptions rulings Formal or therefor; to grounds orders of action the court and his the unnecessary; purposes and, court are but all party for opportunity object for if a has no to to a exception which an ruling made, or order at the time it is has heretofore been neces- the ab- sary party, it is objection sufficient that a at time the sence an preju- does not thereafter ruling sought, or or order of the is made (emphasis dice him. added). makes which he known to the court the action 352 ... we fail to
a
an
see where in
argument
ap
“no evidence”
before
either a jury
or non-jury trial
that a
pellate
appellant
court the
must have filed
“no evidence
point” must be presented to the
motions,
trial
all of which
one or more
during
Court
either
trial or on motion
inadequacy or
bring
to
designed
were
trial,
for new
for it to be preserved
a
fact
proof of
vital
absence of the
on
consideration
appeal.
enabling him to
judge,
of the trial
attention
judgment
render
his error and
correct
at
Id.
675.
he
jurisdiction.
lost
moving party
before
these,
Under circumstances such as
Therefore, in addi
Calvert, supra, at 362.
was
trial
to the court and where
motions, an
making pre-judgment
tion to
objections
lengthy
detailed
de-
new trial
motion for
could file a
appellant
through-
of the
lineation
evidence occurred
Shafer,
as well. Rosas v.
proceeding, any predicate-laying
out
the sev
of which of
(Tex.1967). Regardless
motion,
trial,
including
new
a motion for
selected, it
appellant
options
eral motion
gesture.
would have been
futile
As
a
Jus-
be told
trial court
necessary
observed, “(i)nasmuch
tice
has
as
Guittard
Weingar
J.
what its error was.
explicitly
judge who has decided the facts must neces-
(Tex.
ten,
Inc. v.
Razey,
sarily
the question
have considered
1968).
are
findings
supported
whether
However,
requirements
no such
evidence, no
new
should
motion for
trial
be
non-jury tri
on
from
appeals
been imposed
required
give
opportunity
him another
both
raise
possible
als.
has been
It
Guittard,
question.”
supra,
rule on that
at
of the
sufficiency
and factual
apply to
678. The same rationale should
on
appeal
time
the first
points for
as well.
types
other
motions
Co.,615
v. Artha Garza
Conrad
bench trial.
1981, no
S.W.2d
— Dallas
judgment
elementary
It is
808.
Brown, 590
v.
S.W.2d
writ); Brown
...
court must “conform to
trial
recently
quite
Texas
The
”
....
Tex.R.
proved
nature of
case
predi-
no appellate
it clear that
has made
words,
301. In other
Civ.Pro.
non-jury
made in
need be
cate motions
competent
must
founded on
evidence.
“no evidence”
to assert
trial in order
hold, therefore,
where in a non-
We
Swanson,
on
appeal. Citing Swanson
court,
timely
and informa
jury case the
(Tex.1950),
Tex.
S.W.2d
objection
compliance
of counsel
tive
Systems,
court in Kissman v. Bendix Home
of severe limita
Rule
is made aware
(Tex.1979)
focused on the
587 value
all the evi
probative
tions on the
of facts in
necessity
filing a statement
dence,
need be
predicate-laying
no
motions
object
findings of fact
order to
judg
trial court before or after
filed in the
at 677-
first
time on
appeal.
ment
to assert “no evidence”
in order
to be
believe the Kissman rationale
We
bar,
although
the case at
applicable to
question
next
is whether Bluebonnet
of law were
fact and conclusions
findings of
factual
permitted
insufficiency
to assert
court, none
in the trial
and filed
requested
when
from a
296. The
Tex.R.Civ.Pro.
required.
were
new trial
other
filed
motion for
according to Kissman
crucial document
*8
predicate.
facts, and ob-
of
is the statement
Swanson
in this case.
it was filed
viously
1981,
possible
it
1978
was
Prom
to
in
context of
was
the
This issue
discussed
324
express language of Rule
under the
Produce,
Singh
in
v. Pete
Page
trial
basis
jury
complain
jury findings
of
on the
of
Inc.,
Paso
(Tex.App.
624 S.W.2d
for the first
time on
insufficiency
factual
— El
1981,
n.r.e.):
ref d
writ
ef-
When Rule 324
amended
appeal.2
jury’s
complaint
or
of a
A
that one
more
derance of the
as a
2.
matter of fact
support
findings
in the
have
evi-
raised for the
time on
insufficient
first
Tex.R.
prepon-
(1978).
against
overwhelming
the
Civ.P. 324
dence or are
January 1,1981,
fective
the sentence allow-
ing
years
was decided twelve
ago, and we
ing the assertion of
of
insufficiency
factual
believe
as well
spirit
the
as the
of
substance
jury findings
appeal
for the first
on
time
Rules of
present
Texas
Civil Procedure
reiterate,
was eliminated. To
the current
one
different result from the
very
dictate
provision states the general rule that
re-
the dissent because of its
advanced
“[a]
new
prerequi-
motion for
trial shall not be a
case and its progeny.
liance on that
right
complain
appeal,
site to the
on
longstand-
Court has had a
case”,
jury
non-jury
subject
one
sub-
ing policy against elevating form over
exception: when the
be a
motion would
interpreting points
stance when
of error.
necessary
complaint
vehicle “to present a
more recent
Long
changes
before the
which evidence
must be heard”. Tex. Rules,
Fambrough Wagley,
v.
the Court
If
R.Civ.P.
no new evidence need be
577,
(1943),
Tex.
heard, a motion for new
now an
trial
is
then—
recognized
purpose
unnecessary predicate
appeal
on
concerning
extant Rule 418
the contents
grounds
jury
or non-jury cases. The
“the
simplify
briefing
briefs was to
of cases
assertion
factual
does not
insufficiency
greater
so that
attention will be devoted
involve the taking of new evidence. We
presentation
appeal
of the merits of the
hold, therefore,
that Rule
amended
as
given
to the mechanics of
less attention
1, 1981,
January
though
effective
even
con-
at 482.
brief.”
so,
does not expressly say
party to
allows a
temporary
practice, Tex.R.Civ.P.
appellate
raise factual
of error
insufficiency points
1, 418,
expressly command a
and 422
liberal
for the first time on appeal
non-jury
from a
briefing
construction of
rules. Justice
trial without having
made any
“magic
in words
Calvert has contended
motion in
trial court.
should be as extinct as the
of error
Calvert,
We
supra,
dodo bird.”
at 361.
THE USE OF “RENDERING
agree,
Appellant’s
and hold
use of
JUDGMENT”
“rendering judgment,” in its
phrase,
brief
A second
procedural aspect
does not limit its basis of
Appellant’s
phrase,
case involves
use of the
grounds.
“no evidence”
insufficiency or
“rendering judgment,” in
of error.
its
EVIDENTIARY ISSUES
point, Appellant
In each
that “the
asserted
trial
erred in rendering judgment
court
evidentiary
turn to the
We now
the plaintiff ...”
brought
case. Wausau
a suit
issues in this
under
on
sworn account
Tex.R.Civ.P.
particular
catch phrase
caused
has
premiums allegedly totaling
unpaid
past.
trouble in the
The origin of all the
$52,155.12,
figure
same
as
appeared
mischief
is Chemical Cleaning,
Inc. v.
7. A suit on a sworn
Plaintiff’s Exhibit
Chemical Cleaning and Equipment Service,
proper
recovery
account
vehicle for
is the
Inc., 462
(Tex.1970)
S.W.2d 276
(per
insurance
Rudi’s Automotive
premiums.
curiam), in which
Court made
Heeth,
428, 429
Corporation
v.
the statement
that “a point of error which
1974, no
(Tex.Civ.App.
[1st Dist.]
— Houston
states
erred in
un
writ).
proper
filed a
denial
rendering judgment on a verdict because of
93(k), the
der
effect of which
Tex.R.Civ.P.
the state
the evidence —if it is adequate
proof
of its claim
put
was to
purpose
for any
only a ‘no evidence’
—is
presumption arising
without
from
the aid
point.”
Criswell,
Rule 185. Booher
express
one
contract,
are
charges
that the
absence of
admissibility of evidence
during trial to the
Bell,
usual,
or reasonable. Blue
customary,
appellate
review
a sufficient
563,
Isbell,
(Tex.Civ.
Inc. v.
sufficiency of the evidence to
legal
of the
1976, writ).
Paso
no
App.
and,
disagree
there-
judgment.
render
— El
fore,
dissent.
respectfully
usual,
as to
cus
Any testimony
is not rele
tomary
charges
or reasonable
question
There is no
the record in
Wausau
when
is a contract.
Id.
vant
there
poorly developed and ex-
proposition
cites Rudi’s Automotive for
However,
tremely deficient.
it is
our
still
re
policies were not
the insurance
duty
apply
applicable
to
law to the
evidence,
we find that case to
quired as
but
this,
If we
record as we receive it.
do
this set of
distinguishable clearly
believe the
would be affirmed.
Automotive,
proper
In Rudi’s
no
facts.
four,
through
ap
points
of error one
93(k) was filed.
under Rule
sworn denial
bring
before this court
pellant attempts
Furthermore,
ledg
at 430.
S.W.2d
concerning
and factual
questions
plain
an exhibit to the
er sheet attached as
(1)
regarding:
sufficiency of
evidence
case, in contrast
pleadings
tiff’s
in that
losses,
(2)
premiums,
incurred
standard
in
contained detailed
Plaintiff’s Exhibit
(3)
policies
terms of
not introduced
evi
dates, policy
invoice
including
formation
concerning
calculating
the method of
dence
number,
cred
charged, payments
premium
due,
(4)
premiums
and
additional
also,
ited,
Id.
Toma
and balance due.
See
in evi
policies
due on the
not introduced
Kieval,
ste and
Account
Summa
Sworn
of these
of error asserts
dence. Each
Proposed
A
ry Judgment Proceedings:
rendering judg
the “trial court erred
147, 159 (1975). Even
Change, 17 S.Tex.L.J.
upon the contention there was
ment” based
assume,
for the sake
if one were to
or “insufficient evidence”
“no evidence”
not have
that Wausau did
argument,
complaint
is made.
contracts,
each area about
but
express
contents of
prove the
Inc. v. Chemical
charges
Cleaning
as
In Chemical
rely
on the
rather was entitled
Service, Inc., 462
Cleaning
Equipment
Ex
(Plaintiff’s
open
shown in its
lacking
(Tex.1970),
totally
S.W.2d
7),
hibit
its account
that a
value,
previously
abundantly
clear
as we have
made
probative
while Wausau
“the trial court erred in
asserting
out. We hold that
error
pointed
delivery
judgment”
adequate
of the insurance
proved
rendering
sale and
—if
prove
a no
question,
only
it failed
sufficient to raise
policies
purpose —was
charged
the premiums
Although
second element:
Chemical Clean
point.
owing
as due and
jury,
and the amounts shown
this rule
ing Inc. was a trial before
7 were in accord
Chrys
on Plaintiff’s Exhibit
cases.
applied
non-jury
has been
Schuenemann,
of insurance.
express
contracts
v.
Corporation
ler
(Tex.Civ.App.
[1st
— Houston
“no evidence”
Bluebonnet’s
We sustain
n.r.e.); Chumley
writ ref’d
Dist.]
fact:
of a vital
proof
as to
Hall,
— Dallas
Bluebon-
owing
amount due and
L., Inc. v.
writ);
D.B. &
no
Shaw’s
net.
Fletcher,
(Tex.Civ.App.—
and rendered.
Reversed
writ). The
Houston [1st Dist.]
Justice,
ROBERTSON,
dissenting.
effect
precedential
majority dismisses
ap
the decisions
Cleaning of Chemical
majority
discussion
The extended
by citing
trials
its
it to the
plying
filing
a mo-
requirement
opinion of
spirit
present
age
declaring
nothing to do with
trial has
tion for new
re
a different
rules dictate
day procedural
simply
before us is
The issue
found no Texas
sult.
I have
appel-
preserved
has
appellant
whether
limiting
Chem
overruling
Court decision
of the evidence
sufficiency
review his
late
majority
in the manner
Cleaning
the ma-
ical
analysis,
final
contention.
In the
*10
355
Therefore,
in
a trial
the jury.
has.
I believe
its continued
structed verdict in
before
Watson,
precluded
Savings Association v.
viability and believe we are
from Gibraltar
challenge
(Tex.App.
fac-
624
650
considering appellant’s
S.W.2d
[14th
— Houston
writ).
While
for
of
a motion
sufficiency
ques-
tual
the evidence. The
Dist.]
is
the
mandatory
preserve
new trial
not
precluded
tion
whether we are
remains
of
the evi
question
legal sufficiency
the
of
considering
appellant’s challenge
dence, if
question
has not otherwise
sufficiency
the
of the
legal
evidence.
brought
the
been
to the attention of
trial
article,
in
Justice Calvert
“No Evi-
preserved,
court and therefore
the
dence”
“Insufficient Evidence”
and
Points
has,
any question,
without
authorized
Error,
(1960),
361
points
38 Texas L.Rev.
procedure
preservation
this
for
of the error.
out:
Rosas,
(The
415
at 889-890.
See
S.W.2d
controlling
The
consideration with an
majority
only
believes
case
apparently
this
in
on a
appellate
passing
point
requisite
filing
involves thé
a motion for
at
error directed
the state
the evidence
preserve
legal insufficiency
new trial to
a
is
the
uses
point
prefera-
not whether
the
point.
I do not
this
the situa
believe
to be
ble,
proper, terminology,
or even the
but
procedural
tion. The
issue involved here is
is
the
based
point
upon
whether
whether the record reflects such
issue
particular
related to a
in
procedural step
attention).
brought
was
to the trial court’s
appellate process
the trial and
ais
Here, appellant
brought
never
to the atten
proper predicate
sought.
for the relief
tion of the trial court his contention there
(Emphasis added).
support
was
judgment
no evidence to
a
And, he
out
a
“no evidence”
nor
appellee
did he file a motion for new
point
must be based
one
of sever
questions
trial pursuant
to Rosas. The
procedural
al
steps in the trial court —the
preserved
were therefore not
our re
purpose
point
of which is to
out
the
clearly
Daniels,
view.
is, believe, of those misplaced. In each fact. upon finding attack was cases the majority rely
Unlike the cannot Con Co.,
rad v. Artha Garza 1981, writ) for the — Dallas dispenses that it with the proposition broad appellate predicate requirement of al., FAN-REED, INC., Appellants, et legally assertions of insufficient appeal. majority’s I believe the RIVER MUNICIPAL NECHES to be unsound be UPPER reasoning opinion its AUTHORITY, et WATER an attack on the permits cause it al., Appellees. equates for the first time error. to fundamental No. 12-81-0190-CV. open- Justice As stated Calvert Texas, Appeals of Court of article, “No Evidence” ing of his paragraph Tyler. Er- Evidence” Points of and “Insufficient 28, 1983. April ror, (1960): 38 Texas L.Rev. 361 Opinion With Rehearing Denied per opin- that the curiam thought It was 26, 1983. May King’s in In re ion of the 662, 244 Estate Tex. [150 As-
(1951) of former publication and the ] excellent arti-
sociate Justice Garwood’s