dissenting.
This is a case where the trial judge, after listening to the lawyers’ description of the case, decided he could resolve it without a trial, which he did. We have no procedure in Texas for a trial judge to withdraw a case *89from the trial docket and decide it without testimony.
No trial
The plaintiff, appellant before us, presents one point of error: The trial court erred in granting judgment before the plaintiff had an opportunity to present its evidence and rest its case.
The majority interprets the plaintiffs argument as complaining that the trial court did not permit it to rest its case in what was a non-jury trial. That interpretation misses the point of the plaintiffs argument, which is that it did not get a trial at all — not only did it not get the opportunity to rest, it did not get the opportunity to open.
This case was set for a jury trial on November 11, 1990.1 Both parties announced ready, and their attorneys presented the trial judge with an oral summary of the facts and argued pre-trial motions, including a motion in limine. The trial court never summoned a jury and did not ask the parties to proceed without a jury. In fact, the trial court never asked the parties to proceed at all. All persons in the court room assumed the trial court was conducting a pre-trial hearing.
The statement of facts begins with:
Be it remembered that upon the 11th day of November, A.D., 1990, the above entitled and numbered cause came on for Motions before the Honorable Scott A. Brister, Judge of the 234th District Court of Harris County, Texas_
(Emphasis added.) The statement of facts ends with:
I, Judith J. Kulhanek, Official Court Reporter in and for the 234th District Court of Harris County, Texas, do hereby certify that the foregoing is a true and complete transcription of the Pre-trial Motions as set out herein heard before the Honorable Scott A. Brister, Judge of the 234th District Court of Harris County, Texas, had on the 16th day of November.
(Emphasis added.) Clearly, the court reporter was under the impression she was transcribing a hearing on pre-trial motions, not the trial itself.
The majority dismisses the opening and closing reference in the statement of facts as just one more error on the part of the court reporter. See infra n. 1. It was not just an error in the designation of the proceedings by the court reporter — all comments in the statement of facts by the trial judge indicate that the hearing was for pre-trial motions.2 During the discussion with the lawyers, the trial court repeatedly interposed the comment that certain issues were fact issues, inferring they would be decided in the trial, not at pre-trial. After ruling on some of the motions, the trial court asked, “Anything else 'pre-trial?” (Emphasis added.) The defendant’s attorney asked the court for a ruling on his motion for leave to file a counterclaim, which the court denied. The court then said:
You can have a running objection as to the relevance, I think is your objection. All I am asking you is to stipulate would be admit under hearsay exceptions, et cetera, that kind of stuff. I would allow your objection on relevance in most matters, but if we could, why don’t you all — I think I have a minor settlement here.
After a recess, the court said:
I understand with the exception of relevance agreement, you have reached an agreement on documents. Is that correct, admissibility and authenticity?
The defendant’s lawyer corrected the trial court and said they had reached an agreement on authenticity, not admissibility.
The court asked which party would offer the exhibits, and the defendant’s lawyer said *90he would offer them by agreement. The trial court then said to the plaintiffs lawyer, “Why don’t you offer yours?” The plaintiffs lawyer did as requested and offered his exhibits. The trial court asked if they were offered for all purposes, and the plaintiffs lawyer said “yes.” The defendant’s lawyer objected to the plaintiffs exhibits because they were irrelevant, immaterial, and violated the “eight corners test.” The court then asked if there were any other objections. When the defendant said “no,” the court overruled the objections with “Be overruled subject to disregard.3 Okay. Anything else?” The trial court then asked the parties to prepare briefs.
The majority characterizes the trial as a non-jury trial.4 I disagree that the case was a non-jury trial. After asking “Anything else pre-trial,” the court made no announcement to indicate it was beginning a trial. I think the trial court conducted a pre-trial hearing; the majority believes the pre-trial hearing became the trial itself when the court ruled on the exhibits.
A trial court must give the parties the opportunity to present evidence. Producer’s Constr. Co. v. Muegge, 669 S.W.2d 717, 719 (Tex.1984); Tex.R.Civ.P. 265. In Muegge, the Supreme Court made it clear a party must have the opportunity to present evidence when it said, “The trial court erred in rendering judgment before Producer’s had an opportunity to present evidence and rest its case.” Id. at 719. This Court has also confirmed a party’s right to present evidence. In Safway Scaffold Co. v. Safway Steel Products, Inc., 570 S.W.2d 225, 228 (Tex.App.—Houston [1st Dist.] 1978, writ refd n.r.e.), this Court said:
The granting of the motions [for directed verdict] at that time [before the party had an opportunity to offer evidence] was contrary to the provisions of Rule 265 ... stating the order in which the trial of causes before a jury shall proceed unless otherwise directed by the court for good cause. The motion for directed verdict may be granted only when the movant is entitled to prevail as a matter of law, a circumstance that rarely occurs before the non-movant has had an opportunity to offer evidence.
Safway Scaffold, 570 S.W.2d at 228.
Rule 265 of the Texas Rules of Civil Procedure, which provides for the order of proceedings on trial by jury, is reproduced in footnote three of the majority opinion. By the terms of rule 266, the plaintiff has the right to open and close its evidence. This case did not proceed under rule 265 or 266: The plaintiff was not given the opportunity to make an opening statement, to introduce its evidence through witnesses, or to make a closing argument.
This is not a case in which the plaintiff was denied a jury trial, to which it was entitled, and given only a bench trial, as the majority contends. This is a case in which the plaintiff did not get a trial at all, not a jury or a bench trial. Only on a motion for summary judgment submitted under Tex.R.Civ.P. 166a, or in an agreed case tried under Tex. R.Civ.P. 263, can a court by-pass a trial and render judgment on the merits as a matter of law. The proceeding in this case was the equivalent to a summary judgment, without the procedural protections of a motion for summary judgment; or, it was the equivalent to an agreed case tried under Tex.R.Civ.P. 263, without an agreement.
The insurer’s duty to defend
Under the section of the majority opinion entitled “The insurer’s duty to defend,” the *91majority deals with an issue not raised by the plaintiff-appellant by point of error. Under this section of the opinion, the majority examines whether the defendant, an insurer, had a duty to defend the plaintiff in an earlier suit. The majority answers the question of duty to defend without the benefit of any evidence, by relying on the defendant’s brief.
The defendant’s entire position on appeal is the plaintiffs claim was invalid, and it would be incongruous to permit a party to recover damages when an insurer “rightfully” refuses to pay an “invalid” claim. Defendant’s brief at 15-16.5 No evidence was introduced on the issues of the validity of the claim or the justification for refusing it (or on any other issue). The exhibits did not resolve the issue whether the plaintiffs claim was valid or whether the defendant “rightfully” refused to pay it. Those issues are fact issues that can only be resolved by a trial, not by the novel summary disposition procedure used in this case.
The only point of error we are required to answer in this case is whether the plaintiff received a trial. If the majority believes the plaintiff received a trial, that is the only issue it should address. It should not address the merits of the plaintiffs suit based on the defendant’s brief. The majority attempts to bolster its holding that the plaintiff received a trial by an opinion that also holds there is no merit to the plaintiffs lawsuit
I would reverse and remand, not for retrial, but for trial.
. The docket sheet shows that the jury was requested, and a jury fee was paid by the defendant. When one party demands a jury and pays a fee, all other parties in the suit acquire a right to a jury. White Motor Co. v. Loden, 373 S.W.2d 863, 865 (Tex.App.—Dallas 1963, no writ). A trial court may not withdraw a case from the jury docket, over the objection of any party, even if the party did not make a request or pay the fee. Tex.R.Civ.P. 220; Zemanek v. Boren, 810 S.W.2d 10, 12 (Tex.App.—Houston [14th Dist.] 1991, no writ). The majority opines that a jury was waived because no point of error was presented on the lack of a jury. See infra n. 1. The plaintiff complains that it did not get a trial at all, not that it did not get a jury trial.
. The statement of facts is short, just 34 pages.
. The trial court’s ruling on the exhibits, "subject to disregard,” indicated that some other objection or ruling might be interposed at trial. The court’s ruling admitting them was merely a pretrial ruling on their authenticity, not admissibility. Rule 166 (k) of the Texas Rules of Civil Procedure contemplates that the trial court might make pre-trial rulings on the authenticity and admissibility of exhibits. A ruling on exhibits should not be a substitute for a trial on the merits.
. It is interesting that the defendant does not go as far as the majority on this point. Nowhere in its brief does the defendant contend the plaintiff was given a trial. The defendant argues the plaintiff would not have prevailed even if had been given the opportunity to present evidence; that based on the pleadings it had no duty to defend. Defendant’s brief at 9, 14. That argument would be appropriate if this were an appeal following a summary judgment, but not here, when the case was set for a trial.
. The most telling statement in the defendant’s brief is "There is nothing any live testimony or other evidence could have added....” The majority says almost the same thing: "Capital’s admitted exhibits encompassed the totality of [its'] case....” Unless the plaintiff is given the opportunity to present evidence, no one can determine that it did not have other evidence. The plaintiff would like to have had the opportunity to present evidence.