Dallas Court of Appeals, No. 05-12-01399-CV (June 11, 2014)
Justices FitzGerald, Fillmore, and Evans (Opinion)
Ferguson placed his mother in skilled nursing care at The Plaza at Edgemere. The agreement for her care stated that “The Plaza at Edgemere is a restraint-free community.” When Plaza sued Ferguson for unpaid invoices for his mother’s care, he sought to introduce evidence that restraints had been used on her, arguing this was in breach of their agreement. Plaza filed a motion in limine to prohibit the introduction of such evidence, which the trial court granted. During the pretrial hearing on that motion, Ferguson made a “proffer,” through counsel, describing generally the evidence he wanted to present on the subject. The trial court reaffirmed its ruling that such evidence would not be allowed. At trial, Ferguson did not attempt to introduce the evidence regarding use of restraints. The Dallas Court of Appeals held that simply opposing a motion in limine and “proffering” a description of the disputed evidence before trial is not sufficient to preserve error for the exclusion of that evidence. Instead, during trial “the party must . . . (1) approach the bench and ask for a ruling; (2) formally offer the evidence; and (3) obtain a ruling on the offer” and make a formal offer of proof. Because Ferguson did not do any of that, his complaint regarding exclusion of the evidence was not preserved for appeal.
