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:
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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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Court of Appeals

S

Fifth District of Texas at Dallas

JUDGMENT

SEARCY FERGUSON AND THE ESTATE 

OF MARGARET MILLER, Appellant

No. 05-12-01399-CV 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.

Opinion delivered by Justice Evans. 

Justices FitzGerald and Fillmore 

participating.

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