DOLENZ v. PULSE

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Docket Number

No. 05-89-01198-CV.

Attorney(S)

Bernard J. Dolenz, Houston, for appellant. M. William Nelson, Dallas, for appellee.

Judges

BAKER, Justice.

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Smart Summary

Factual and Procedural Background

Bernard J. Dolenz sued Terry Pulse, M.D., for defamation. The trial court directed a verdict in favor of Pulse. Dolenz appealed, asserting thirteen points of error alleging the trial court abused its discretion in certain pretrial and trial rulings. The Court of Appeals reviewed the case following this appeal.

Legal Issues Presented

Whether the trial court erred in directing a verdict for the defendant, Terry Pulse, M.D.
Whether the trial court abused its discretion in making certain pretrial and trial rulings as alleged in Dolenz's thirteen points of error.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
McKelvy v. Barber, 381 S.W.2d 59 (Tex. 1964)	Establishes that to reverse a directed verdict, the plaintiff must show the verdict cannot be supported on the grounds asserted by the defendant.	The court held that Dolenz failed to attack the directed verdict as required, resulting in a waiver of his right to question it.
McAx Sign Co. v. Royal Coach, Inc., 547 S.W.2d 368 (Tex. Civ. App. — Dallas 1977, no writ)	Confirms that failure to attack a directed verdict precludes reversal and that errors not affecting the directed verdict cannot justify reversal.	The court applied this principle to overrule all thirteen points of error since none challenged the directed verdict.

Court's Reasoning and Analysis

The court reasoned that when a trial court directs a verdict for the defendant, the plaintiff must specifically challenge the directed verdict to obtain reversal. Dolenz failed to do so either by a point of error or argument attacking the directed verdict itself. Consequently, the court found that Dolenz waived his right to contest the verdict. The court further explained that even if Dolenz's thirteen points of error alleging abuse of discretion in pretrial and trial rulings were sustained, they would not warrant reversal because the directed verdict stands unchallenged. The court emphasized that errors must have caused an improper judgment to justify reversal, which Dolenz did not demonstrate.

Holding and Implications

The Court of Appeals affirmed the trial court's judgment.

The direct effect of this decision is that the directed verdict in favor of Terry Pulse, M.D., remains intact, and Dolenz's appeal is denied. The court did not set new precedent but applied established principles requiring a specific attack on a directed verdict for reversal.

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Bernard J. DOLENZ, Appellant, v. Terry PULSE, M.D., Appellee.

BAKER, Justice.

Bernard J. Dolenz sued Terry Pulse, M.D., for defamation. The trial court directed a verdict in Pulse's favor. Dolenz asserts thirteen points of error, contending the trial court abused its discretion in making certain pretrial and trial rulings. We affirm the trial court's judgment without reaching any of these points.

When a trial court directs a verdict for a defendant, in order for the plaintiff to reverse the trial court's judgment, it is necessary for him to establish that the peremptory instruction cannot be supported on the grounds asserted by the defendant. See McKelvy v. Barber, 381 S.W.2d 59, 62 (Tex. 1964); McAx Sign Co. v. Royal Coach, Inc., 547 S.W.2d 368, 369 (Tex.Civ.App. — Dallas 1977, no writ). In this case, Dolenz has failed to attack the trial court's action in directing the verdict against him either by a point of error or in argument under any point of error. We hold that Dolenz has waived his right to question the trial court's actions and that he has failed to discharge his burden of establishing that the instructed verdict was improper. See McKelvy, 381 S.W.2d at 62.

This same principle prevents our consideration of Dolenz's thirteen points of error, all of which complain of the trial court's alleged abuse of discretion in making pretrial and trial rulings. None of these points, even if sustained, would be grounds for reversal because the court's action in directing a verdict has not been attacked and cannot be set aside. Because Dolenz failed to attack the directed verdict, he has failed to show that the errors complained of "amounted to such a denial of his rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case." See McAx Sign Co., 547 S.W.2d at 370; TEX.R.APP.P. 81(b)(1). We overrule points of error one through thirteen.

We affirm the trial court's judgment.