The opinion
ROBERTSON, Justice,
dissenting.
The extended discussion in the majority opinion of the requirement for filing a motion for new trial has nothing to do with this appeal. The issue before us is simply whether appellant has preserved for appellate review his sufficiency of the evidence contention. In the final analysis, the majority opinion holds that an objection made during trial to the admissibility of evidence is a sufficient predicate for appellate review of the legal sufficiency of the evidence to render judgment. I disagree and, therefore, respectfully dissent.
There is no question that the record in this appeal is poorly developed and extremely deficient. However, it is still our duty to apply the applicable law to the record as we receive it. If we do this, I believe the judgment would be affirmed.
In points of error one through four, appellant attempts to bring before this court questions concerning the legal and factual sufficiency of the evidence regarding: (1) the standard premiums, (2) incurred losses, (3) terms of policies not introduced in evidence concerning the method of calculating premiums due, and (4) additional premiums due on the policies not introduced in evidence. Each of these points of error asserts the “trial court erred in rendering judgment” based upon the contention there was “no evidence” or “insufficient evidence” in each area about which complaint is made. In Chemical Cleaning Inc. v. Chemical Cleaning and Equipment Service, Inc., 462 S.W.2d 276 (Tex.1970), the Supreme Court made it abundantly clear that a point of error asserting “the trial court erred in rendering judgment” — if adequate for any purpose — was sufficient to raise only a no evidence point. Although Chemical Cleaning Inc. was a trial before a jury, this rule has been applied to non-jury cases. Chrysler Corporation v. Schuenemann, 618 S.W.2d 799 (Tex.Civ.App.—Houston [1st Dist.] 1981, writ ref’d n.r.e.); Chumley v. Hall, 601 S.W.2d 803 (Tex.Civ.App.—Dallas 1980, no writ); Shaw’s D.B. & L., Inc. v. Fletcher, 580 S.W.2d 91 (Tex.Civ.App.—Houston [1st Dist.] 1979, no writ). The majority dismisses the precedential effect of Chemical Cleaning and the decisions applying it to the non-jury trials by citing its age and declaring the spirit of the present day procedural rules dictate a different result. I have found no Texas Supreme Court decision overruling or limiting Chemical Cleaning in the manner the majority *355 has. Therefore, I believe in its continued viability and believe we are precluded from considering appellant’s challenge to the factual sufficiency of the evidence. The question remains whether we are precluded from considering appellant’s challenge to the legal sufficiency of the evidence.
Justice Calvert in his article, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361 (1960), points out:
The controlling consideration with an appellate court in passing on a point of error directed at the state of the evidence is not whether the point uses the preferable, or even the proper, terminology, but is whether the point is based upon and related to a particular procedural step in the trial and appellate process and is a proper predicate for the relief sought. (Emphasis added).
And, he points out that a “no evidence” point must be based upon any one of several procedural steps in the trial court — the purpose of which is to point out clearly the contentions complained of to the trial court in time for it to correct any error. Rosas v. Shafer, 415 S.W.2d 889 (Tex.1967). The basis for this rule is that fundamental error in civil cases survives today only in those rare instances in which the record shows the court lacked jurisdiction or that the public interest is directly and adversely affected as that interest is declared in the statutes or the Constitution of Texas. Pirtle v. Gregory, 629 S.W.2d 919 (Tex.1982).
In order to preserve error on appeal there must be a showing that the matter was called to the attention of the trial court and a ruling was secured thereon. City of Austin v. Daniels, 160 Tex. 628 , 335 S.W.2d 753 (Tex.1960). According to this record, the points about which appellant now complains were raised for the first time in its brief to this court. Appellant did not ask for nor file a motion for judgment at the close of the evidence thereby calling the question of the legal sufficiency of the evidence to the attention of the trial court. Of course, a motion for judgment in a non-jury case is the legal equivalent of a motion for instructed verdict in a trial before the jury. Gibraltar Savings Association v. Watson, 624 S.W.2d 650 (Tex.App.—Houston [14th Dist.] 1981, no writ). While a motion for new trial is not mandatory to preserve the question of the legal sufficiency of the evidence, if that question has not otherwise been brought to the attention of the trial court and therefore preserved, the Supreme Court has, without any question, authorized this procedure for preservation of the error. See Rosas, 415 S.W.2d at 889-890 . (The majority apparently believes this case only involves thé requisite of filing a motion for new trial to preserve a legal insufficiency point. I do not believe this to be the situation. The procedural issue involved here is whether the record reflects such an issue was brought to the trial court’s attention). Here, appellant never brought to the attention of the trial court his contention there was no evidence to support a judgment for appellee nor did he file a motion for new trial pursuant to Rosas . The questions were therefore not preserved for our review. Daniels, 335 S.W.2d at 759 . I believe the recent decision of the Texas Supreme Court in Greater Fort Worth and Tarrant County Community Action Agency v. Mims, 627 S.W.2d 149 (Tex.1982) is applicable to the question before us. There, in holding that failure to present the issue of standing to the trial court waived the issue, the court said:
A point not raised by pleadings, on motions for new trial, or otherwise presented to the trial court may not be raised on appeal. Rule 324, Tex.R.Civ.Pro. This issue was not raised by the pleadings; it was not mentioned in CAA’s [appellant’s] motion for new trial or its amended motion for new trial, and there is nothing in the record to indicate that it was ever brought to the attention of the trial court; therefore the point was waived by CAA.
Id. at 151 . If failure to bring the standing issue to the trial court’s attention resulted in its waiver for appeal, then why would not the same principle be applied where a no evidence point assailing the judgment was never brought to the attention of the *356 trial court? Logically, it should, and I would so hold. As a result, we are precluded from passing upon appellant’s points contesting the legal sufficiency of the evidence.
However, the majority fails to recognize the absence of an appellate predicate in this record. Without citing any authority whatsoever, it judicially construes an objection to the admission of evidence during trial as a predicate to preserve a point of error asserting there is no evidence to render judgment. The majority also appears to equate an assignment of error complaining of the legal or factual sufficiency of the evidence to sustain trial court findings of fact with an assignment of error that the trial court “erred in rendering judgment” because of the state of the evidence. Ironically, appellant apparently recognizes the distinction because, unlike the first four points of error attacking the judgment, its fifth point of error attacks a finding of fact made by the trial court. I, too, believe there is a difference and would so hold.
The majority’s reliance upon Kissman v. Bendix Home Systems, 587 S.W.2d 675 (Tex.1979) and Brown v. Brown, 590 S.W.2d 808 (Tex.Civ.App. — Eastland 1979, no writ), is, I believe, misplaced. In each of those cases the attack was upon a finding of fact. Unlike the majority I cannot rely upon Conrad v. Artha Garza Co., 615 S.W.2d 238 (Tex.Civ.App.—Dallas 1981, no writ) for the broad proposition that it dispenses with the requirement of an appellate predicate for assertions of legally insufficient evidence points on appeal. I believe the majority’s reasoning in its opinion to be unsound because it permits an attack on the judgment for the first time on appeal. This equates to fundamental error.
As stated by Justice Calvert in the opening paragraph of his article, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361 (1960):
It was thought that the per curiam opinion of the Supreme Court in In re King’s Estate [ 150 Tex. 662 , 244 S.W.2d 660 (1951) ] and the publication of former Associate Justice Garwood’s excellent article, The Question of Insufficient Evidence on Appeal, would resolve, both for lawyers and judges of Courts of Civil Appeals, most of the problems growing out of points of error challenging a verdict or judgment because of a lack of evidence or lack of sufficient evidence to support it, or because it is contrary to the great weight and preponderance of the evidence; but a growing number of recent decisions indicate a continuing misunderstanding in some quarters of the nature and office of points of error of that type, justifying, it seems to the writer, a somewhat more analytical discussion of the subject.
I acknowledge there may be conflict with a decision by the El Paso Court of Appeals on the issue before us. See Page v. Pete, 624 S.W.2d 674 (Tex.App.—El Paso 1981, writ ref’d n.r.e.). However, even today Justice Calvert’s article is being approvingly cited in Texas Supreme Court decisions and it is for that reason I believe in its viability. See, e.g., Trenholm v. Ratcliff, 646 S.W.2d 927 (Tex.1983). I can find no logical basis for not applying its reasoning to the record before us and would accordingly overrule appellant’s first four points of error.
I respectfully dissent.