                       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



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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



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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



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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




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       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

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