AFFIRMED and Opinion Filed August 4, 2022 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-20-00665-CV PHOENIX THERA-LASE SYST EMS, LLC, Appellant V. CUREWAVE LASERS, LL C, DANIEL HERBERT, LASER CONCEPTS, LLC AND LYLE BLAC KWOOD, Appellees On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-11292 MEMORANDUM OPINION Before Justices Pedersen, III, Goldstein, and Smith Opinion by Justice Goldstein Phoenix Thera-Lase Systems, LLC appe als the trial court’s judgment that Phoenix take nothing on its claims against CureWave Lasers, LLC, Daniel Herbert, Laser Concepts, LLC, and Lyle Blackwood. In two issues, Phoenix argues the trial court abused its discretion in failing to grant a mistrial following Herbert’s violation of a motion in limine and erred in exclud ing evidence that w ould have impeached Herbert’s testimony. We affirm the trial court’s judgment. Phoenix is a medical laser technol ogy company formed in 2012 by Gary Bellinger, Phoenix’ majority owner and inventor of its technology. Phoenix hired–2– Herbert as an independent sales representative and Blackwood as a sales and marketing representative. Both Herber t and Blackwood signed confidentiality and non-disclosure agreements. In early 2015, Herbert and others approached Phoenix about forming a new company, CureWave, th at would license Phoenix’ confidential information and trade secrets and in which Phoenix would have majority ownership. Phoenix terminated Herbert in August 2015 because it appeared the investment opportunity was an attempt to gain access to Phoenix’ confidential and proprietary business information. Blackwood was te rminated in January 2016 following a dispute concerning commission payments. In August 2017, Phoenix filed the underlyi ng lawsuit. In April 2018, Phoenix filed its second amended pe tition alleging Herbert formed CureWave to directly compete with Phoenix after his termin ation and misappropriated Phoenix’ confidential and proprietary information. Phoenix further alleged that Blackwood engaged in a conspiracy with Herbert an d CureWave to misappropriate Phoenix’ trade secrets and confidential and propr ietary business information. Phoenix asserted claims of trade secret misa ppropriation, breach of contract, fraud, conversion, tortious interference with contract, torti ous interference with business relations, unfair competition, unjust enrichment, and conspiracy. On March 9, 2020, the tria l court signed an order on the parties’ motions in limine. The order granted Phoenix’ motion in limine as to any reference to “any criminal acts, history, or arrests of any parties and/or witnesses prohibited by Texas–3– Rules of Evidence 404(b)(1)” and “[c]rimi nal convictions of any parties and/or witnesses greater than ten years ago, as excluded under Texas Rules of Evidence 609(b).” The order also prohibited “Ques tions, testimony, statements, evidence, or argument construing CureWave ’s laser systems as not a pproved by, cleared by, or exempted by the Food and Drug Administration.” At trial, during Herbert’s direct ex amination by Phoenix’ counsel, counsel noted that Bellinger, Phoenix’ founder and majority owner, was not copied on an email referring to “a new company” that woul d be a subsidiary of Phoenix. Herbert responded that “we’re getting a plan to work around a couple of pimples we had on our record.” Counsel asked what “pimpl es” Herbert was referring to, but counsel immediately excused himself and stated, “Strike that question.” Counsel asked Herbert if he was working with Dave Po wer, Phoenix’ former president, “to essentially cut out” Bellinger from the ne w company, and Herbert answered, “Not at all.” Counsel asked about another emai l containing a partnership agreement that Herbert sent to Power without copying Bellinger. After establishing that the partnership agreement was not used, counsel asked whether Herbert ever went into business with Power. Herbert answered: No. Dave and I were working with Mark Dorian with some investors, and we had to cover up – because Mark Dorian had to relay everything and he couldn’t talk about the two fe lonies that Gary Bellinger had. Phoenix’ counsel immediately object ed and, following an off-therecord discussion at the bench, stated “I withdraw that question, Your Honor.”–4– Nevertheless, Phoenix’ counsel continued to ask Herbert whether “at this point, Mr. Bellinger doesn’t know what you’re doing; is that correct? You haven’t looped him in?” Herbert’s counsel objected to this lin e of questioning as “violating one of the limine topics.” The trial court overruled the objection and said, “We can talk about that outside the presence of the jury.” P hoenix’ counsel next co nfirmed with Herbert that he “wanted to have a subsidiary created for Phoenix Thera-Lase.” At that time, Herbert testified, everybody was “on board with this plan,” and Bellinger was “now involved.” During a pause in the proceedings an d outside the presence of the jury, Phoenix’ counsel complained that Herber t, “in violation of the motion in limine regarding felonies over ten years old . . . bl urted out that it was about two felonies.” Counsel argued this was “unduly prejudicial to the jury” and moved for a mistrial. Herbert’s counsel responded that Phoenix’ counsel “opened the door” to the issue of Bellinger’s “felony background.” The tria l court then made the following oral ruling: Okay. Thank you. The Court has cons idered the request for a mistrial and it is denied. With respect to No. 29, as I discussed with counsel at the pretrial conference, the reason fo r that motion in limine is that it was not apparent to the Court that any of those acts were relevant at that time. When Plaintiff’s counsel br ought up leaving Mr. Bellinger off emails and why they were working around him, as I communicated in the -- outside the presence of the ju ry, with counsel in sidebar, that elicited a response that would allo w Defendants to clarify the reason they believed that that action was ta king place. Therefore, putting into the case and making relevant whether or not there were some criminal acts that they believed required that they not include him on the future–5– partnership corporate activities. Theref ore, the request for a mistrial is denied. And to the extent that th at becomes relevant to clarify the reason that Mr. Bellinger was not on the e-mails and was not asked to sign the partnership agreement, t hose questions will be allowed. During his testimony, Herbert repeatedly stated that his company, CureWave, was “exempt cleared” by the FDA, “FDA cleared on July 14, 2017,” and otherwise “cleared” by the FDA. Phoenix repeatedly tried to introduce into evidence for impeachment purposes a warning letter from the FDA showing that CureWave was not cleared by the FDA and CureWave’s res ponse to the warning letter. Following a jury verdict in favor of appellees, the tr ial court entered judgment that Phoenix take nothing on its claims. Phoenix’ motion for new trial was overruled, and this appeal followed. In its first issue, Phoenix argues the tr ial court abused its discretion in failing to grant a mistrial following Herbert’ s violation of the motion in limine. Specifically, Phoenix asserts that Herbert’s violation of the motion in limine “substantially and irreparably prejudiced [Phoenix] in front of the jury when [Herbert] gave unnecessary and unduly prejudicial tes timony regarding Bellinger’s alleged criminal history.” A motion in limine is a procedural devi ce that provides a party an opportunity to know in advance the evidentiary rulings the court will make during trial before the evidence is presented. Weidner v. Sanchez , 14 S.W.3d 353, 363 (Tex. App.— Houston [14th Dist.] 2000, no pet.). By obtaining pretrial rulings, the opposing party is prevented from asking prejudicial questions in front of the jury without first asking–6– the trial court's permission. Id. A party complaining of a limine violation must object immediately after the information it sought to be excluded is revealed. Id. at 364-65. The objecting party must also reque st the court to instruct the jury to disregard the evidence. State Bar of Tex. v. Evans , 774 S.W.2d 656, 658 n.6 (Tex. 1989). Error is waived if there is no tim ely objection and request for an instruction to disregard, unless the error is incurable. Id. We review the trial court’s denial of a motion for mistrial under an abuse of discretion standard. Deese v. Combined Specialty Ins. Co. , 352 S.W.3d 864, 866 (Tex. App.—Dallas 2011, no pet.). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or w ithout reference to any guiding rules or principles. See id. Here, Phoenix’ counsel objected immediat ely to Herbert’s reference to “two felonies.” However, counsel did not requ est an instruction to disregard; instead, following an off-the-record discussion at the bench, counsel withdrew the question that elicited the complained-of response. To the extent counsel did not request an instruction to disregard, any error is waived. See Evans , 774 S.W.3d at 658 n.6. Moreover, the record is clear that the tria l court determined Phoenix “[put] into the case and [made] relevant whet her or not there were some criminal acts” that led to Bellinger not being included “on the future pa rtnership corporate activities.” On that basis, the trial court overruled Phoenix’ motion for mistrial. Under these circumstances, we conclude the trial court did not abus e its discretion in overruling–7– Phoenix’ motion for mistrial. See Deese , 352 S.W.3d at 866. We overrule Phoenix’ first issue. In its second issue, Phoenix argues the trial court abused its discretion in failing to allow Phoenix to introduce the FDA warning letter a nd Herbert’s response in order to impeach Herber t’s testimony that CureWave was “cleared” by the FDA. The decision whether to admit or excl ude evidence is committed to the sound discretion of the trial court. City of Brownsville v. Alvarado , 897 S.W.2d 750, 753 (Tex. 1995). “A trial court’s evidentiary ruli ng must be upheld if there is a legitimate basis for it.” May v. Buck , 375 S.W.3d 568, 573–74 (Tex. App.—Dallas 2012, no pet.) (citing Owens–Corning Fiberglas Corp. v. Malone , 972 S.W.2d 35, 43 (Tex. 1998)). Even if the exclusion or admission of evidence is found to be an abuse of discretion, it does not warrant reversal unless the error probably caused the rendition of an improper judgment. See id. In this case, Phoenix’ claims were ba sed on allegations that Herbert formed CureWave to directly compete with Phoenix after his termination and misappropriated Phoenix’ confidential and pr oprietary information. Phoenix further alleged that Blackwood engage d in a conspiracy with Herbert and CureWave to misappropriate Phoenix’ trade secrets a nd confidential and pr oprietary business information. Whether or not CureWave was “cleared” by the F DA was not relevant to the issues of whether Herbert and ot hers misappropriated Phoenix’ confidential and proprietary information and used it agains t Phoenix. We conclude this lack of–8– relevance formed a legitimate basis for excluding evidence concerning whether CureWave was “cleared” by the FDA. See id. In addition, we note that the trial court’s order on the parties motions in limine prohibited “Questions, testimony, statements, evidence, or argument constr uing CureWave’s laser systems as not approved by, cleared by, or exempted by the Food and Drug Administration.” We overrule Phoenix’ second issue. Because of our disposition of Phoenix’ issues, we necessarily reject its argument that the tria l court erred in failing to grant its motion for new trial. See T EX

. R. C IV

. P. 320 (new trials may be granted and judgment set aside for good cause); In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P. , 290 S.W.3d 204, 210 (Tex. 2009). We affirm the trial court’s judgment.

200665F.P05 /Bonnie Lee Goldstein / BONNIE LEE GOLDSTEIN JUSTICE–9– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT

PHOENIX THERA-LASE SYSTEMS, LLC, Appellant

No. 05-20-00665-CV V. CUREWAVE LASERS, LLC, DANIEL HERBERT, LASER CONCEPTS, LLC AND LYLE BLACKWOOD, Appellee On Appeal from the 162nd Judicial District Court, Dallas County, Texas Trial Court Cause No. DC-17-11292. Opinion delivered by Justice Goldstein. Justices Pedersen, III and Smith participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. It is ORDERED that appellee CUREWAVE LASERS, LLC, DANIEL HERBERT, LASER CONCEPTS, LLC AND LYLE BLACKWOOD recover their costs of this appeal from appellant PHOENIX THERA-LASE SYSTEMS, LLC.
Judgment entered this 4th day of August 2022.