Searcy Ferguson and the Estate of Margaret Miller v. the Plaza Health Services at Edgemere ( 2014 )

AFFIRMED; Opinion Filed June 11, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-01399-CV
SEARCY FERGUSON AND THE ESTATE OF MARGARET MILLER, Appellants
V.
THE PLAZA HEALTH SERVICES AT EDGEMERE, Appellee
On Appeal from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-10-13192
MEMORANDUM OPINION
Before Justices FitzGerald, Fillmore, and Evans
Opinion by Justice Evans
Appellants Searcy Ferguson and the Estate of Margaret Miller appeal from a judgment in
favor of the Plaza Health Services at Edgemere (“Edgemere”). We affirm.
BACKGROUND
In 2006, Margaret Miller became a resident of Edgemere. Miller’s son, Searcy Ferguson,
executed the Assisted Living Admission Agreement as the “responsible party.” The appellants
agreed to pay certain amounts to appellee for Miller’s care and treatment. In 2010, Miller
entered the skilled nursing resident program at Edgemere. Once again, Ferguson executed the
Skilled Nursing Resident Agreement as the “responsible party,” and appellants agreed to pay
additional amounts to appellee. Section VI.8 of the Skilled Nursing Resident Agreement
provides as follows:
The Plaza at Edgemere is a restraint-free community. Restraints of any type will
not be used as punishment or as a substitute for more effective medical nursing
care or for the convenience of the community staff. Complete Restraint and
Seclusion Policy is posted in [the] Texas Department of Aging and Disability
Services book located in the third floor library.
In 2010, appellee filed a lawsuit against appellants alleging that they failed to pay the
amounts owed to appellee. Appellants filed breach of contract, Deceptive Trade Practices Act,
and medical negligence counterclaims against appellee. The trial court dismissed appellants’
medical negligence counterclaims with prejudice because appellants failed to timely file a
medical expert report.
Prior to trial, appellee filed a motion in limine requesting, among other things, that the
trial court prohibit the following:
Any mention of the use of restraints and/or straight jackets [sic] on Margaret
Miller during her [residence] at Edgemere. These are allegations of medical
malpractice, and all such claims have already been dismissed by this Court due to
Defendants’ failure to file an expert report as required by TEX. CIV. PRAC. & REM.
CODE § 74.351.
The trial court granted the motion. Appellants’ counsel then made the following “proffer” to the
trial court:
And the discussion or administration of the use of restraints and restraint jackets
goes to a direct breach of the contract provision which was cited to earlier in these
proceedings wherein Mrs. Miller was specifically and contractually under a
provision which stated that the Edgemere facility was a no-restraint facility and
they would not be used for any purposes for convenience of the staff nor for the
administration of discipline or for any other purpose with respect to residents at
the Edgemere facility.
In response, the trial court replied as follows:
Again, based on the allegations that are asserted and the testimony that is wanting
to be presented in front of the trier of fact, based on the Court’s prior rulings and
based on the present state of the case that there is no present medical malpractice
cause of action pending, the issues as to quality of medical services, rehab,
whether they’re substandard . . . those are matters that fall within Chapter 74 of
the medical malpractice cause of action . . . . And whether or not the restraints
were proper in use of Mrs. Miller in her rehab or therapy, again, falls under a
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medical malpractice cause of action which the Court determines is not pending.
So, therefore, we’re not going to talk about it.
Following a jury trial, the trial court granted appellee’s motion for a directed verdict on all of
appellants’ affirmative defenses and their counterclaim. The jury found in favor of appellee and
awarded appellee in $38,565.24 in damages and $83,000 in attorneys’ fees. Appellants then filed
this appeal.
ANALYSIS
Appellants argue in their sole issue that the trial court improperly excluded all evidence
relating to appellee’s use of a straitjacket or restraints on Miller. We disagree.
After the trial court granted appellee’s motion in limine, appellants made a “proffer” to
the trial court. However, this act alone is insufficient to preserve error. A trial court’s grant or
denial of a motion in limine does not preserve error. In re Toyota Motor Sales, U.S.A., Inc., 407
S.W.3d 746, 760 (Tex. 2013) (favorable ruling on motion in limine); In re CH.E., 05-97-00055-
CV, 1999 WL 498576, at *1 (Tex. App.—Dallas July 15, 1999, no pet.) (not designated for
publication) (Moseley, J. concurring) (unfavorable ruling on motion in limine). In order to
preserve error once a motion in limine is granted, the party must—during trial—comply with the
following: (1) approach the bench and ask for a ruling; (2) formally offer the evidence; and (3)
obtain a ruling on the offer. Malone v. Foster, 956 S.W.2d 573, 578 (Tex. App.—Dallas 1997)
(“To complain on appeal that the trial court erroneously excluded evidence, the appellant must
show he attempted to introduce the evidence and obtained an adverse ruling from the judge.”),
aff’d, 977 S.W.2d 562 (Tex. 1998); BNSF Railway Co. v. Phillips, No. 02-11-00250-CV, 2014
WL 2131480, at *17 (Tex. App—Ft. Worth May 22, 2014, no pet. h.) (op. on rehg.); Wild Rose
Rescue Ranch v. City of Whitehouse, 373 S.W.3d 211, 217-18 (Tex. App.—Tyler 2012, no pet.)
(“To complain on appeal that the trial court erroneously excluded evidence, [the appellant] must
have offered the evidence during trial and obtained an adverse ruling from the trial court.”). If,
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at that time, the court rules the evidence inadmissible, the party must further preserve the
evidence through an offer of proof. See Sw. Cnty. Enter., Inc. v. Lucky Lady Oil Co., 991
S.W.2d 490, 493–94 (Tex. App—Ft. Worth 1999, pet. denied). An offer of proof requires a
party, subsequent to a ruling excluding evidence, to show the substance of evidence excluded.
Id. at 494.
In this instance, appellants neither offered evidence regarding the use of a straitjacket or
restraints during trial nor did they obtain an adverse ruling from the trial court. As appellants
have failed to preserve anything for review, we overrule appellants’ sole issue.
CONCLUSION
We resolve appellants’ sole issue against them and affirm the trial court’s judgment.
121399F.P05
/David Evans/
DAVID EVANS
JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
SEARCY FERGUSON AND THE ESTATE On Appeal from the 44th Judicial District
OF MARGARET MILLER, Appellant Court, Dallas County, Texas
Trial Court Cause No. DC-10-13192.
No. 05-12-01399-CV V. Opinion delivered by Justice Evans.
Justices FitzGerald and Fillmore
THE PLAZA HEALTH SERVICES AT participating.
EDGEMERE, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee THE PLAZA HEALTH SERVICES AT EDGEMERE
recover its costs of this appeal from appellant SEARCY FERGUSON AND THE ESTATE OF
MARGARET MILLER.
Judgment entered this 11th day of June, 2014.
/David Evans/
DAVID EVANS
JUSTICE
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