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Affirmed and Memorandum Opinion filed July 10, 2018.
FILED
In The one. ane
Sourteenth Court of Appeals _ JUL 10 208
jemena Lee
NO. 14-17-00225-CV > SRST
IVAN MORALES AND MYRA MORALES, Appellants
Vv.
- COLLIN TAPLIN, Appellee
On Appeal from the 55th District Court
Harris County, Texas
Trial Court Cause No. 2014-02407
MEMORANDUM OPINION
In this appeal from an alleged automobile accident, appellants Ivan and
Myra Morales challenge the trial court’s judgment that they take nothing from
appellee Collin Taplin. In two issues, appellants argue that: (1) the trial court erred
in excluding Taplin’s deposition, in which he allegedly lied, and then admitted to
‘tying, about an unrelated criminal conviction; and (2) the exclusion of this
evidence resulted in an improper judgment because Taplin’s credibility was a
central issue in the case.
RECORDER'S MEMORANDUM
This instrument is of poor quality
at the time of imagingBecause we conclude that: appellants did not preserve their evidentiary
complaint, we affirm.
Background
The facts of this case need not be recounted in great detail for purposes of
the issues raised in this appeal.
In August 2013, appellants allegedly were involved in a car accident with
Taplin, who was driving an 18-wheel tractor trailer. Appellants sued Taplin for
negligence.
The case proceeded to trial, where both appellants and Taplin testified,
offering diametrically opposite accounts of the alleged occurrence. Appellants
testified that Taplin rear-ended their car three times while traveling on a Houston
freeway. Ivan, who was driving, switched lanes to avoid Taplin; according to
appellants, Taplin “fled the scene.” Appellants introduced pictures of their vehicle
showing damage to the rear bumper. Appellants testified that they suffered
physical injuries and incurred more than $190,000 in medical expenses as a result
of the accident.
Taplin testified that he did not hit appellants’ car. There was no evidence of
damage to Taplin’s truck.
Appellants wanted to impeach Taplin with portions of his deposition given
in this case. During the deposition, appellants’ attorney asked Taplin whether he
had a criminal conviction on his record. Taplin answered “no.” Later during the
deposition, Taplin admitted he had been convicted of a felony more than twenty-
five years earlier. Appellants raised the issue during a pre-trial hearing on motions
in limine. Appellants told the court that Taplin’s deposition was “relevant to his
credibility . . . and in that deposition he lied consistently.” The trial judge granted
2Taplin’s motion in limine and instfucted the parties to approach the bench if Taplin
committed perjury or demonstrated an inability to comprehend that he was
testifying under oath. Appellants did not seek to question Taplin regarding the
issue or seek to introduce the deposition testimony during the evidentiary portion
of trial. After all witnesses had testified and both parties rested, appellants
proffered the deposition as an offer of proof. The trial judge noted that the
deposition was “proffered but not admitted” into evidence.
The jury found that Taplin did not proximately cause the occurrence in
question. The trial court signed a take-nothing judgment, and appellants appeal.
Analysis
In two issues, appellants argue that the trial court erred in excluding “the
existence of untruthful prior inconsistent statements”—i.e., Taplin’s deposition in
which he denied, but later admitted, that he had been convicted of a felony—and
that such exclusion was harmful because Taplin’s credibility was central to the
case. In response, Taplin argues, among other things, that appellants did not offer
the relevant evidence or secure a ruling from the trial court excluding the evidence
and thus did not preserve error. After reviewing the record, we agree with Taplin.
Evidentiary decisions are committed to the trial court’s sound discretion.
U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). To show that the
trial court abused its discretion in excluding evidence, a complaining party must
first establish that evidence affecting the party’s substantial rights was excluded,
ie., that the party offered the evidence and obtained an adverse ruling from the
trial court, thus preserving error. Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a); see
also In re L.D.W., No. 14-11-00438-CV, 2013 WL 2247383, at *3 (Tex. App.—
Houston [14th Dist.] May 21, 2013, no pet.) (mem. op.); Estate of Veale v.
Teledyne Indus., Inc., 899 S.W.2d 239, 242 (Tex. App.—Houston [14th Dist.]
. 31995, writ denied). The thresliolé question to their evidentiary complaint, then, is
whether appellants preserved error by seeking to elicit the subject testimony or
offering the deposition into evidence and securing an adverse ruling. Tex. R. App.
P. 33.1(a).
The parties discussed the deposition during the hearing on motions in limine.
The trial judge granted Taplin’s motion in limine and stated that he was “not going
to allow it at the trial,” but told the parties that he was open to “rethink[ing] it” and
to approach the bench if the deposition became relevant.
A trial court’s granting of a motion in limine is a preliminary ruling that
preserves nothing for appellate review. Reule v. M&T Mortg., 483 S.W.3d 600,
621-22 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). A motion in limine
merely precludes reference to the subject of the motion without a party’s first
obtaining a ruling on the admissibility of those matters outside the presence of the
jury. See Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 557 (Tex.
App.—Houston [Ist Dist.] 1996), aff'd, 972 S.W.2d 35 (Tex. 1998); see also
Weidner v. Sanchez, 14 S.W.3d 353, 363 (Tex. App.—Houston [14th Dist.] 2000, :
no pet.).
Therefore, to complain on appeal that the trial court erroneously excluded
Taplin’s deposition testimony or denied appellants an opportunity to impeach
Taplin, appellants must have offered the evidence during the evidentiary portion of
the trial and obtained an adverse ruling from the trial court. See, e.g., Tempo
Tamers, Inc. v. Crow-Houston Four, Ltd., 715 S.W.2d 658, 662-63 (Tex. App.—
Dallas 1986, writ ref’d n.r.e.). At trial, appellants did not attempt to offer the
deposition during any witness’s testimony, seek to impeach Taplin on that issue, or
secure a ruling on the deposition’s admissibility. Appellants did not raise the issue
again until after evidence closed and the parties rested, when appellants proffered
4the deposition as an offer of proof However, the trial court had no opportunity to
rule on the testimony’s admissibility during the evidentiary portion of the trial.
Appellants’ stated desire to make the deposition “part of the record” amounts to an
offer of proof, but an offer of proof supports error only if the proponent actually
offers the evidence during trial and obtains an adverse ruling. See Indus. III, Inc. v.
_ Burns, No. 14-13-00386-CV, 2014 WL 4202495, at *12 (Tex. App—Houston
[14th Dist.] Aug. 26, 2014, pet. denied) (mem. op.). Because appellants failed to
obtain any evidentiary ruling from the trial court concerning the use of Taplin’s
deposition at trial, they did not obtain a final adverse ruling from the trial court.
See, e.g., Ulogo v. Villanueva, 177 $.W.3d 496, 501 (Tex. App.—Houston [1st
Dist.] 2005, no pet.) (op. on reh’g); see also Tex. R. App. P. 33.1(a). Accordingly,
appellants’ evidentiary complaint presents nothing for our review. ,
Without reaching the merits of their arguments, we overrule appellants’ two
issues on appeal.
Conclusion
We affirm the trial court’s judgment.
/s/_ Kevin Jewell
Justice
Panel consists of Justices Jamison, Wise, and Jewell.Justices
FILE COPY
Chief Justice
WILLIAM J. BOYCE ‘KEM THOMPSON FROST
TRACY
MARTHA HILL JAMISON f Clerk
J. BRETT BUSBY : (CHRISTOPHER A. PRINE
JouN DoNovAN “
PHONE 7}
se Wom Fourteenth Court of Appeals "s274200
ne 301 Fannin, Suite 245
Houston, Texas 77002
Tuesday, July 10, 2018
NOTICE OF OPINION DISTRIBUTION
Harris County, District Clerk, Civil Division
Harris County District Clerk - Civil
201 Caroline, Ste 420
Houston, TX 77002
* DELIVERED VIA E-MAIL *
Robert D. Brown
Donato, Minx, Brown & Pool, P.C.
3200 Southwest Fwy Ste 2300
Houston, TX 77027-7541
* DELIVERED VIA E-MAIL *
Presiding Judge, Eleventh Administrative Judicial
Michael Matt Jett
Donato, Minx, Brown & Pool, P.C.
3200 Southwest Fwy Ste 2300
Houston, TX 77027-7541
* DELIVERED VIA E-MAIL *
Cory Daniel Itkin
Amold & Itkin, LLP
6009 Memorial Drive
Houston, TX 77007
* DELIVERED VIA E-MAIL *
Robert Myrick Browning
Region Browns Sims, P. C.
Honorable Susan Brown 1177 West Loop South, 10th floor
Presiding Judge, Eleventh Administrative Judical Houston, TX 77027
Region * DELIVERED VIA E-MAIL *
1201 Franklin, 17th Floor
Houston, TX 77002 Judge, 55th District Court
* DELIVERED VIA E-MAIL * Harris County Civil Courthouse
201 Caroline, 9th Floor
Ryan S. MacLeod Houston, TX 77002
Amold & Itkin, LLP * DELIVERED VIA E-MAIL *
6009 Memorial Dr.
Houston, TX 77007 Noah Wexler
* DELIVERED VIA E-MAIL * Arnold & Itkin, LLP
6009 Memorial Drive
John Benjamin ‘Ben’ Bireley Houston, TX 77007
Amold & Itkin, LLP * DELIVERED VIA E-MAIL *
6009 Memorial Drive :
Houston, TX 77007
* DELIVERED VIA E-MAIL *
Jason A. Itkin
Arnold & Itkin, LLP
6009 Memorial Drive
Houston, TX 77007
* DELIVERED VIA E-MAIL *
-RE: Court of Appeals Number: 14-17-00225-CV
Trial Court Case Number: 2014-02407
Style: Ivan Morales and Myra Morales
Vv.
Colin TaplinFILE COPY
Please be advised the Court today issued an opinion which AFFIRMED the above cause.
You _ may obtain a oY of the Court's opinion and judgment at
sea s coa=coal4&s=c. On the request of any entity listed in
Rule 48.1, @ paper copy of the “opinion will be mailed to that entity. For more information about a
particular case, please visit the Court’s website at http://www.txcourts.gov/14thCOA.
Sincerely,
/s/ Christle Herrera
Deputy Clerk
Preview
(W) Affirmed and Memorandum Opinion filed July 10, 2018. FILED In The one. ane Sourteenth Court of Appeals _ JUL 10 208 jemena Lee NO. 14-17-00225-CV > SRST IVAN MORALES AND MYRA MORALES, Appellants Vv. - COLLIN TAPLIN, Appellee On Appeal from the 55th District Court Harris County, Texas Trial Court Cause No. 2014-02407 MEMORANDUM OPINION In this appeal from an alleged automobile accident, appellants Ivan and Myra Morales challenge the trial court’s judgment that they take nothing from appellee Collin Taplin. In two issues, appellants argue that: (1) the trial court erred in excluding Taplin’s deposition, in which he allegedly lied, and then admitted to ‘tying, about an unrelated criminal conviction; and (2) the exclusion of this evidence resulted in an improper judgment because Taplin’s credibility was a central issue in the case. RECORDER'S MEMORANDUM This instrument is of poor quality at the time of imagingBecause we conclude that: appellants did not preserve their evidentiary complaint, we affirm. Background The facts of this case need not be recounted in great detail for purposes of the issues raised in this appeal. In August 2013, appellants allegedly were involved in a car accident with Taplin, who was driving an 18-wheel tractor trailer. Appellants sued Taplin for negligence. The case proceeded to trial, where both appellants and Taplin testified, offering diametrically opposite accounts of the alleged occurrence. Appellants testified that Taplin rear-ended their car three times while traveling on a Houston freeway. Ivan, who was driving, switched lanes to avoid Taplin; according to appellants, Taplin “fled the scene.” Appellants introduced pictures of their vehicle showing damage to the rear bumper. Appellants testified that they suffered physical injuries and incurred more than $190,000 in medical expenses as a result of the accident. Taplin testified that he did not hit appellants’ car. There was no evidence of damage to Taplin’s truck. Appellants wanted to impeach Taplin with portions of his deposition given in this case. During the deposition, appellants’ attorney asked Taplin whether he had a criminal conviction on his record. Taplin answered “no.” Later during the deposition, Taplin admitted he had been convicted of a felony more than twenty- five years earlier. Appellants raised the issue during a pre-trial hearing on motions in limine. Appellants told the court that Taplin’s deposition was “relevant to his credibility . . . and in that deposition he lied consistently.” The trial judge granted 2Taplin’s motion in limine and instfucted the parties to approach the bench if Taplin committed perjury or demonstrated an inability to comprehend that he was testifying under oath. Appellants did not seek to question Taplin regarding the issue or seek to introduce the deposition testimony during the evidentiary portion of trial. After all witnesses had testified and both parties rested, appellants proffered the deposition as an offer of proof. The trial judge noted that the deposition was “proffered but not admitted” into evidence. The jury found that Taplin did not proximately cause the occurrence in question. The trial court signed a take-nothing judgment, and appellants appeal. Analysis In two issues, appellants argue that the trial court erred in excluding “the existence of untruthful prior inconsistent statements”—i.e., Taplin’s deposition in which he denied, but later admitted, that he had been convicted of a felony—and that such exclusion was harmful because Taplin’s credibility was central to the case. In response, Taplin argues, among other things, that appellants did not offer the relevant evidence or secure a ruling from the trial court excluding the evidence and thus did not preserve error. After reviewing the record, we agree with Taplin. Evidentiary decisions are committed to the trial court’s sound discretion. U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). To show that the trial court abused its discretion in excluding evidence, a complaining party must first establish that evidence affecting the party’s substantial rights was excluded, ie., that the party offered the evidence and obtained an adverse ruling from the trial court, thus preserving error. Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a); see also In re L.D.W., No. 14-11-00438-CV, 2013 WL 2247383, at *3 (Tex. App.— Houston [14th Dist.] May 21, 2013, no pet.) (mem. op.); Estate of Veale v. Teledyne Indus., Inc., 899 S.W.2d 239, 242 (Tex. App.—Houston [14th Dist.] . 31995, writ denied). The thresliolé question to their evidentiary complaint, then, is whether appellants preserved error by seeking to elicit the subject testimony or offering the deposition into evidence and securing an adverse ruling. Tex. R. App. P. 33.1(a). The parties discussed the deposition during the hearing on motions in limine. The trial judge granted Taplin’s motion in limine and stated that he was “not going to allow it at the trial,” but told the parties that he was open to “rethink[ing] it” and to approach the bench if the deposition became relevant. A trial court’s granting of a motion in limine is a preliminary ruling that preserves nothing for appellate review. Reule v. M&T Mortg., 483 S.W.3d 600, 621-22 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). A motion in limine merely precludes reference to the subject of the motion without a party’s first obtaining a ruling on the admissibility of those matters outside the presence of the jury. See Owens-Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 557 (Tex. App.—Houston [Ist Dist.] 1996), aff'd, 972 S.W.2d 35 (Tex. 1998); see also Weidner v. Sanchez, 14 S.W.3d 353, 363 (Tex. App.—Houston [14th Dist.] 2000, : no pet.). Therefore, to complain on appeal that the trial court erroneously excluded Taplin’s deposition testimony or denied appellants an opportunity to impeach Taplin, appellants must have offered the evidence during the evidentiary portion of the trial and obtained an adverse ruling from the trial court. See, e.g., Tempo Tamers, Inc. v. Crow-Houston Four, Ltd., 715 S.W.2d 658, 662-63 (Tex. App.— Dallas 1986, writ ref’d n.r.e.). At trial, appellants did not attempt to offer the deposition during any witness’s testimony, seek to impeach Taplin on that issue, or secure a ruling on the deposition’s admissibility. Appellants did not raise the issue again until after evidence closed and the parties rested, when appellants proffered 4the deposition as an offer of proof However, the trial court had no opportunity to rule on the testimony’s admissibility during the evidentiary portion of the trial. Appellants’ stated desire to make the deposition “part of the record” amounts to an offer of proof, but an offer of proof supports error only if the proponent actually offers the evidence during trial and obtains an adverse ruling. See Indus. III, Inc. v. _ Burns, No. 14-13-00386-CV, 2014 WL 4202495, at *12 (Tex. App—Houston [14th Dist.] Aug. 26, 2014, pet. denied) (mem. op.). Because appellants failed to obtain any evidentiary ruling from the trial court concerning the use of Taplin’s deposition at trial, they did not obtain a final adverse ruling from the trial court. See, e.g., Ulogo v. Villanueva, 177 $.W.3d 496, 501 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (op. on reh’g); see also Tex. R. App. P. 33.1(a). Accordingly, appellants’ evidentiary complaint presents nothing for our review. , Without reaching the merits of their arguments, we overrule appellants’ two issues on appeal. Conclusion We affirm the trial court’s judgment. /s/_ Kevin Jewell Justice Panel consists of Justices Jamison, Wise, and Jewell.Justices FILE COPY Chief Justice WILLIAM J. BOYCE ‘KEM THOMPSON FROST TRACY MARTHA HILL JAMISON f Clerk J. BRETT BUSBY : (CHRISTOPHER A. PRINE JouN DoNovAN “ PHONE 7} se Wom Fourteenth Court of Appeals "s274200 ne 301 Fannin, Suite 245 Houston, Texas 77002 Tuesday, July 10, 2018 NOTICE OF OPINION DISTRIBUTION Harris County, District Clerk, Civil Division Harris County District Clerk - Civil 201 Caroline, Ste 420 Houston, TX 77002 * DELIVERED VIA E-MAIL * Robert D. Brown Donato, Minx, Brown & Pool, P.C. 3200 Southwest Fwy Ste 2300 Houston, TX 77027-7541 * DELIVERED VIA E-MAIL * Presiding Judge, Eleventh Administrative Judicial Michael Matt Jett Donato, Minx, Brown & Pool, P.C. 3200 Southwest Fwy Ste 2300 Houston, TX 77027-7541 * DELIVERED VIA E-MAIL * Cory Daniel Itkin Amold & Itkin, LLP 6009 Memorial Drive Houston, TX 77007 * DELIVERED VIA E-MAIL * Robert Myrick Browning Region Browns Sims, P. C. Honorable Susan Brown 1177 West Loop South, 10th floor Presiding Judge, Eleventh Administrative Judical Houston, TX 77027 Region * DELIVERED VIA E-MAIL * 1201 Franklin, 17th Floor Houston, TX 77002 Judge, 55th District Court * DELIVERED VIA E-MAIL * Harris County Civil Courthouse 201 Caroline, 9th Floor Ryan S. MacLeod Houston, TX 77002 Amold & Itkin, LLP * DELIVERED VIA E-MAIL * 6009 Memorial Dr. Houston, TX 77007 Noah Wexler * DELIVERED VIA E-MAIL * Arnold & Itkin, LLP 6009 Memorial Drive John Benjamin ‘Ben’ Bireley Houston, TX 77007 Amold & Itkin, LLP * DELIVERED VIA E-MAIL * 6009 Memorial Drive : Houston, TX 77007 * DELIVERED VIA E-MAIL * Jason A. Itkin Arnold & Itkin, LLP 6009 Memorial Drive Houston, TX 77007 * DELIVERED VIA E-MAIL * -RE: Court of Appeals Number: 14-17-00225-CV Trial Court Case Number: 2014-02407 Style: Ivan Morales and Myra Morales Vv. Colin TaplinFILE COPY Please be advised the Court today issued an opinion which AFFIRMED the above cause. You _ may obtain a oY of the Court's opinion and judgment at sea s coa=coal4&s=c. On the request of any entity listed in Rule 48.1, @ paper copy of the “opinion will be mailed to that entity. For more information about a particular case, please visit the Court’s website at http://www.txcourts.gov/14thCOA. Sincerely, /s/ Christle Herrera Deputy Clerk