Rocky L. Salinas, D.D.S., and RGV Smiles by Rocky L. Salinas D.D.S. P.A., Both Individually and D/B/A RGV Smiles and RGV Smiles and RGV Smiles, Individually v. Ralph Ruby ( 2018 )

NUMBER 13-16-00674-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
ROCKY L. SALINAS, D.D.S., AND
RGV SMILES BY ROCKY L.
SALINAS D.D.S. P.A., BOTH
INDIVIDUALLY AND D/B/A RGV
SMILES AND RGV SMILES AND
RGV SMILES, INDIVIDUALLY, Appellants,
v.
RALPH RUBY, Appellee.
On appeal from the 139th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Hinojosa
Memorandum Opinion by Chief Justice Valdez
Appellants Dr. Rocky L. Salinas, D.D.S and RGV Smiles by Rocky L. Salinas,
D.D.S., P.A., both individually and d/b/a RGV Smiles and RGV Smiles (Dr. Salinas)
appeal a judgment following a jury trial rendered in favor of appellee Ralph Ruby (Ruby).
By two issues, Dr. Salinas contends that (1) the trial court abused its discretion by
admitting improper character evidence, and (2) the admission of improper character
evidence caused the rendition of an improper judgment. We affirm.
I. BACKGROUND
Dr. Salinas is a dentist and Ruby is a landscape contractor. In 2010, Dr. Salinas
and Ruby entered into an agreement wherein Dr. Salinas would provide dental restoration
services for Ruby in exchange for Ruby’s performance of landscaping services for Dr.
Salinas.
Dr. Salinas and Ruby settled on a course of treatment for Ruby’s dental services.
From December 11, 2011 to January 30, 2014, Dr. Salinas treated Ruby numerous times.
During this time, Ruby underwent several root canals, had several teeth repaired after
crown and veneer breakage, underwent sinus surgery, and had his bite adjusted multiple
times. Ruby visited other specialists for different opinions to determine the cause of these
abnormalities. After obtaining the same negative opinions about Dr. Salinas from different
doctors, Ruby ceased treatment with Dr. Salinas on January 30, 2014.
Ruby sued Dr. Salinas and RGV Smiles on March 30, 2015 asserting negligence
arising from the alleged dental malpractice of Dr. Salinas. Prior to trial, Dr. Salinas and
Ruby filed motions in limine. Dr. Salinas requested that the trial court prevent Ruby from
introducing “testimony concerning similar events or occurrences that involve [Dr. Salinas]
other than the one in question that happened either before or after the incident made the
basis of this lawsuit” unless such testimony is relevant and admissible. The trial court
heard Dr. Salinas’s motion in limine on July 25. At the hearing, Dr. Salinas requested
2
that the trial court grant his motion in limine to prevent Ruby from introducing testimony
of another dental malpractice suit that a different patient filed against Dr. Salinas (Trevino
lawsuit). The trial court denied Dr. Salinas’s request on July 26.
At trial, Ruby’s two expert witnesses, Dr. Robbie Henwood and Dr. James Person,
both dentists, testified that they believed the tooth breakage, sinus surgery, and root
canals were the direct result of Dr. Salinas’s negligence. The jury found Dr. Salinas
negligent in his dental care and awarded Ruby $200,000 in damages. The trial court
entered judgment in that amount. This appeal ensued.
II. ADMISSIBILITY OF EVIDENCE
By his first issue, Dr. Salinas argues that the trial court abused its discretion by
admitting evidence of the Trevino lawsuit against Dr. Salinas in violation of rule 404(b).
See TEX. R. EVID. 404(b). In response, Ruby asserts that “Dr. Salinas waived any
objection to the Trevino [lawsuit] by not filing a pretrial motion to exclude and not timely
objecting at trial.” We agree with Ruby.
A. Applicable Law
To preserve error for appellate review, the complaining party must timely and
specifically object to the evidence and obtain a ruling. TEX. R. APP. P. 33.1(a); see also
TEX. R. EVID. 103(a). “Error is waived if the complaining party allows the evidence to be
introduced without objection.” Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d
231, 235 (Tex. 2007). It is well established that “a trial court’s ruling on a motion in limine
preserves nothing for review. A party must object at trial to preserve error.” Boulle v.
Boulle, 254 S.W.3d 701, 709 (Tex. App.—Dallas 2008, no pet.); TEX. R. APP. P. 33.1(a)(1).
To preserve error after the ruling on a motion in limine, the complaining party needs to
3
object at trial to the admissibility of the evidence it seeks to exclude. Boulle, 254 S.W.3d
at 709. “Otherwise, a trial court is denied the opportunity to make a curative instruction
or mistrial ruling.” Pool v. Ford Motor Co., 715 S.W.2d 629, 637 (Tex. 1986).
B. Discussion
Dr. Salinas claims that the trial court “overruled Dr. Salinas’s repeated objections
to this testimony, apparently relying on the Texas Supreme Court case Kia Motors v.
Ruiz.” 432 S.W.3d 865 (Tex. 2014). However, our review of the record reveals that Dr.
Salinas failed to object to reference of the Trevino lawsuit when it was first introduced in
front of the jury through Dr. Henwood’s deposition testimony. To preserve error after the
trial court’s ruling on his motion in limine, Dr. Salinas needed to object at trial to any
reference to the Trevino lawsuit and obtain a ruling on his objection. In re Toyota Sales,
U.S.A., Inc., 407 S.W.3d 746, 760 (Tex. 2013); Norfolk Southern Ry. Co. v. Bailey, 92
S.W.3d 577, 583 (Tex. App.—Austin 2002, no pet.) (holding that a motion in limine does
not relieve the party from objecting to the evidence when tendered at trial). Here, Dr.
Salinas failed to object to Dr. Henwood’s reference to the Trevino lawsuit. See In re
Toyota, 407 S.W.3d at 760; Pool, 715 S.W.3d at 637. By failing to object, the trial court
was denied the opportunity to make a curative instruction or mistrial ruling. See Pool,
715 S.W.2d at 637. Thus, having failed to object when the evidence was offered during
Dr. Henwood’s testimony, Dr. Salinas has waived error. See In re Toyota, 407 S.W.3d at
760; Pool, 715 S.W.3d at 637.
Moreover, when Ruby cross-examined Dr. Salinas and asked him about the
Trevino lawsuit, Dr. Salinas objected on the basis that it was overly prejudicial. The trial
court immediately sustained Dr. Salinas’s objection and instructed Ruby “to go on to
4
something else.” Thus, Dr. Salinas cannot argue that the trial court abused its discretion
by admitting evidence of the Trevino lawsuit because the trial court sustained Dr.
Salinas’s objection, and Ruby did not further pursue the matter.
Notwithstanding Dr. Salinas’s failure to object to the Trevino lawsuit when it was
first introduced during Dr. Henwood’s testimony and the trial court’s sustaining of Dr.
Salinas’s objection when it was introduced again, Dr. Salinas’s objection at trial does not
comport with the issue he presents on appeal. See Marin v. Mem’l Point Prop. Owners
Ass’n, Inc., 410 S.W.3d 397, 407 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (holding
that an objection at trial must comport with the issue presented on appeal). At trial, Dr.
Salinas objected to the testimony as being overly prejudicial under rule 403. That is, he
believed any probative value it may have had was outweighed by its danger for unfair
prejudice. On appeal, however, he asserts that reference to the Trevino lawsuit should
not have been admitted because Texas Rules of Evidence 404(b) precludes a party from
using evidence of other acts to prove a person acted in conformity with that past conduct.
TEX. R. EVID. 404(b). Thus, even if the trial court had made a pretrial admissibility ruling
on the Trevino lawsuit as Dr. Salinas suggests—rather than a ruling on Dr. Salinas’s
motion in limine—because Dr. Salinas’s objection at trial does not comport with the issue
he presents on appeal, he did not preserve this issue for our review. See McLellan v.
Benson, 877 S.W.2d 454, (finding that once an opponent objects under 404(b) he must
further object under rule 403 in order for the trial court to conduct the required balancing
test). Accordingly, we overrule his first issue.
III. CONCLUSION
5
Having overruled Dr. Salinas’s sole issue, we affirm the trial court’s judgment. 1
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice
Delivered and filed the
6th day of December, 2018.
1 Because we determine that Dr. Salinas did not preserve his complaint for appeal, his second
issue for review is not dispositive. See TEX. R. APP. P. 47.4
6