Motion in Limine to Exclude Reference in Texas

What Is a Motion in Limine to Exclude Reference?

Background

A motion in limine is a preliminary ruling by a trial court and is further defined as a procedural device that permits a party to identify, before trial, certain evidentiary rulings that the court may be asked to make so as to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of the jury. (Onstad v. Wright (2001) 54 S.W.3d 799, 805 citing Hartford Accident Indem. Co. v. McCardell (1963) 369 S.W.2d 331, 335 (Tex. 1963); see also, Fort Worth Hotel Ltd. P'ship v. Enserch Corp. (1998) 977 S.W.2d 746, 757.)

The purpose of a motion in limine is thus to prevent the other party from asking prejudicial questions and introducing prejudicial evidence in front of the jury without first asking the court's permission. (Onstad, supra, citing Weidner v. Sanchez (2000) 14 S.W.3d 353, 363.)

How to Structure the Motion

Under Tex.R.Civ.P. 193.6, a party may motion the court to exclude reference to material and information not timely produced during the discovery process, as a sanction for the opposing party's failure to comply. (Tex.R.Civ.P. 193.6)

The defendant, or the party wishing to avoid this sanction, will then have the burden of showing that:

that there was a good reason for the failure to timely produce or supplement responses; and
that the failure will not unfairly surprise or prejudice the moving party.

(Tex.R.Civ.P. 193.6(a)(1) and (2).)

A motion to exclude reference to particular materials or circumstances may be proffered where the moving party argues that such referential testimony is hearsay and inadmissible. (Tilotta v. Goodall (1988) 752 S.W.2d 160, 163; Tex. R. Civ. 801, 802.4.)

A motion in limine to exclude anticipated evidence may be presented to the court. The practice is approved in Ford v. Carpenter (1949) 147 Tex. 447, 216 S.W.2d 558, 560. When the court has ruled on a point, the same evidence should not again be offered in the presence of the jury. (In re Boultinghouse's Estate (1950) Tex.Civ.App., 267 S.W.2d 614, 620.)

A trial court's ruling on a motion in limine is not a final ruling on the evidence and preserves no error for appellate review. (See Acord v. Gen. Motors Corp. (1984) 669 S.W.2d 111, 116.)

Counsel may, so long as the judge permits, urge upon the court, out of the hearing of the jury, the correctness of his position. (Burdick v. York Oil Co. (1963) 364 S.W.2d 766, 770.) The presentation of excluded matter to the jury by suggestion, by the wording of a question, or by indirection, violates professional standards and counsel's duty to the court.... There is a duty upon the court to rule decisively. When error creeps into the record, the court should instruct the jury to disregard it. The judge must do more. He must enforce his rulings. Violations of a court's solemn rulings should “lead to serious consequences.” (Id.)

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. (Ulogo v. Villanueva (2005) 177 S.W.3d 496, 500 citing Owens-Corning Fiberglas Corp. v. Malone (1996) 916 S.W.2d 551, 557.) Therefore, to complain on appeal that the trial court erroneously excluded evidence, [the party] must have offered the evidence during trial and obtained an adverse ruling from the trial court. (Ulogo, Id., citing Tempo Tamers, Inc. v. Crow-Houston Four, Ltd. (1986) 715 S.W.2d 658, 662-63.)

The Court’s Decision

It is well settled that the granting of a motion in limine is not sufficient to preserve error for review, but rather there must be a proper objection to the proffered evidence. (In re J.A.P. (2009) No. 06-08-00092-CV citing Zinda v. McCann St., Ltd. (2005) 178 S.W.3d 883, 894.) A motion in limine seeks to exclude objectionable matters from coming before the jury through a posed question, jury argument, or other means. (Weidner v. Sanchez (2000) 14 S.W.3d 353, 363.)

Where a trial court's order on a motion in limine is violated, an appellate court reviews the violations to see if they are curable by an instruction to the jury to disregard them. (See Dove v. Dir., State Employees Workers' Comp. Div. (1993) 857 S.W.2d 577.) Violations of an order on a motion in limine are incurable if instructions to the jury would not eliminate the danger of prejudice. (Dennis v. Hulse (1962) 362 S.W.2d 308, 309; Kendrix v. S. Pac. Transp. Co. (1995) 907 S.W.2d 111, 114; Dove, 857 S.W.2d at 580.)

The violation of a motion in limine may entitle a party to relief, but any remedies available with regard to such a violation lie with the trial court. (Onstad, 54 S.W.3d at 806.) If its order has been violated, the trial court may apply the sanctions of contempt or take other appropriate action. (Id., citing Lewis v. State (1981) 627 S.W.2d 492, 494.)