Court of Appeals of Texas, El Paso.

Francisco MORUA, Individually and by his Guardian, Virginia Morua, Appellant,

v.

STATE FARM FIRE & CASUALTY COMPANY, Appellee.

No. 08-96-00092-CV.

|

July 11, 2000.

Before BARAJAS, C.J., McCLURE and CHEW, JJ.

OPINION ON REMAND

BARAJAS

*1 This is an appeal from a jury’s finding that Appellant was not entitled to lifetime benefits under the Workers’ Compensation Act. For reasons set forth below, we reverse and remand.

I. SUMMARY OF THE EVIDENCE

Francisco Morua (“Morua”) worked at Economy Laundry in El Paso, Texas. On April 15, 1985, Morua suffered head and back injuries while in the course and scope of his employment. While placing a pair of pants on a presser, Morua accidentally activated the presser at the wrong time and was struck on the forehead. He reported the incident to the office manager immediately after receiving the blow. Subsequently, Morua drove himself to two different doctors. He returned to work for approximately two weeks following the accident.

On July 10, 1985, Morua began seeing Dr. Kaim, an El Paso psychiatrist. Appellant complained of throbbing headaches, blurred vision, vertigo, and dizziness. Dr. Kaim continued to treat Morua off and on for ten years; although at trial Dr. Kaim admitted that most medical testing showed there was nothing wrong with Appellant, as he had a normal CAT scan of the head, a normal MRI, and a normal EEG.

Morua underwent a lumbar laminectomy to correct back problems associated with the injury. Following the surgery, he was disabled from returning to work. Morua was, however, able to drive a car. He indicated that he took his children to school and to baseball practice, drove himself to Juarez, Mexico, and back to El Paso, and drove himself to doctor appointments (which he was able to schedule). Further, Morua was able to walk his children home from school and watch his son practice baseball. He bought his own clothes, and borrowed and paid back money from a finance company. Virginia Morua, Morua’s ex-wife, testified that in 1993, she was going to have herself removed as Morua’s guardian because he was able to care for himself. Morua never appeared in court at any time during trial, and the only evidence presented was from his deposition.

In Morua’s original petition, he alleged that, as a consequence of the accident, he sustained an injury to his skull which resulted in his incurable insanity and imbecility. Morua concluded that he was, therefore, entitled to lifetime benefits under the Workers’ Compensation Act. The case was submitted to the jury only on the issue of incurable insanity.¹ The jury determined that Morua was not insane. Morua now brings this appeal.

II. DISCUSSION

In Morua v. State Farm Fire & Casualty Co., 960 S.W.2d 659 (Tex.App.-El Paso 1997), rev’d 979 S.W.2d 616 (Tex.1998), we reversed and remanded the judgment of the court below based on our conclusion that the trial court erred by allowing Appellee’s expert to testify in spite of the fact that Appellee failed to verify its supplemental answer to interrogatories in which it identified the expert-an issue raised in Appellant’s Point of Error No. Five. The Texas Supreme Court granted State Farm’s petition for review and determined that, although we stated the law correctly, Morua did not preserve error for appeal on that point. See State Farm Fire & Casualty Co. v. Morua, 979 S.W.2d 616, 621 (Tex.1998). We now address Appellant’s remaining points of error.

A. Motion in Limine Violations

*2 In Points of Error Nos. One and Two, Appellant argues that the trial court erred when it admitted into evidence certain reports and witness testimony pertaining to Appellant’s purported drug activity, all in purported violation of Appellant’s motion in limine. Specifically, Appellant complains that the motion in limine was violated when Appellee, without first approaching the bench in accordance with the motion: (1) introduced certain medical records which included statements concerning Appellant’s prior drug use; (2) read certain statements from the admitted reports concerning prior drug use to the jury;² and (3) questioned Appellant’s ex-wife about Appellant’s prior drug use. Appellant urges that “this Court should hold that counsel’s three violations of Morua’s Motion in Limine and the prejudicial effect of the names, ‘drug dealer’ and ‘drug user’ did cause the rendition of an improper verdict.”

The purpose of a motion in limine is to get a preliminary ruling regarding the admissibility of evidence. See Fort Worth Hotel Ltd. Partnership v. Enserch Corp., 977 S.W.2d 746, 757 (Tex.App.-Fort Worth 1998, no writ). The ruling on the motion, however, is not a ruling on the admissibility of the evidence. See id. at 757. “[I]t is merely a tentative ruling that prohibits a party from asking a certain question or offering certain evidence in front of the jury without first approaching the bench for a ruling.” Id. at 757. Thus, if a trial court grants a motion in limine, opposing counsel must, prior to offering the objectionable evidence, approach the bench and request a ruling on the admissibility of the evidence. Although our search of the record has uncovered Appellant’s motion in limine, the record is devoid of an actual ruling on the motion. Because the record does not reflect that the trial court granted the motion in limine, we cannot say that Appellee was required to approach the bench prior to offering the objectionable matter. We overrule Appellant’s Points of Error Nos. One and Two.

B. The Social Security Administration/Eloy Castillo Report

In Points of Error Nos. Three and Four, Appellant contends that the trial court erred when it admitted certain reports in the custody of the Social Security Administration. The reports included (1) documentation of tests performed on Appellant by the Social Security Administration which included findings that Appellant had no organic mental disorder, psychotic disorders, or personality disorders, and a final assessment that “your condition is not severe enough to keep you from working;” and (2) a report written by Dr. Eloy Castillo, a counseling psychologist, which included written findings that “[t]he examination did not reveal any evidence of any personality aberrations.” The report was in the custody of the Social Security Administration and was introduced by Appellee as a business record through an employee of the Social Security Administration.³ Appellant objected to the report on three grounds: (1) That a report created by a private medical practitioner which ultimately ended up in a government file, could not automatically be introduced as a business record because “authentication has to be by someone that can say the record is kept in the ordinary course of business and that it is made by a person having firsthand knowledge of the event and it’s recorded shortly after the event;” (2) It is not proper to allow medical testimony “that would have to be established by reasonable medical probability” into evidence as a business record; and (3) the Social Security Administration’s report contemplates matters not relevant to the proceeding and the admission of the report would tend to confuse the jury.

*3 The decision to admit or exclude an exhibit is within a trial court’s discretion and should not be overruled unless the court has abused its discretion. See Gilgon v. Hart, 893 S.W.2d 562, 569 (Tex.App.-Corpus Christi 1994, writ denied). To determine whether a trial court abused its discretion, we must decide “whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable.” Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990); see Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). Moreover, we may not reverse a judgment unless the error probably resulted in the rendition of an incorrect judgment. See Tex.R.App.P. 44.1(a).

We addressed a similar issue in Hooper v. Torres, 790 S.W.2d 757 (Tex.App.-El Paso 1990, writ denied). In that case, Hooper appealed from a judgment rendered in favor of Torres in her underlying negligence cause of action. On appeal, Hooper argued that the trial court erred when it excluded portions of medical records written by Dr. Boone which were offered as a business record of Dr. Boone and the El Paso Orthopedic Surgery Group. The records were offered into evidence through an employee of the El Paso Orthopedic Surgery Group who offered testimony that the record was made in the ordinary course of Dr. Boone’s and the Surgery Groups’s business, and that someone with knowledge of the events recorded the data. The trial court excluded the portions of the records that were not actually compiled by Dr. Boone. On review, we held:

A very similar issue was before the Court in Texas Employer’s Insurance Association v. Sauceda, 636 S.W.2d 494 (Tex.App.-San Antonio 1982, no writ). In that case, the court held the letter was not admissible and said if it was written in response to a request by TEIA, the instrument did not qualify as a routine entry in the claimant’s medical history. Objection was also made concerning an opinion about which doctors can and do disagree. That objection would not be valid today. 20 Hous.L.Rev. 520-21 (1983). In Associated Indemnity Corp. v. Dixon, 632 S.W.2d 883 (Tex.App.-Dallas 1982, writ ref’d n.r.e.), the court found medical reports which contained reports and documents not generated by the doctors or their employees but produced from outside sources were not admissible. Most of the report which the court excluded in this case was a summary of notes and reports made by other doctors. We find no error in excluding that part of the report which was not based upon entries by Dr. Boone or employees of his surgery group.

Id. at 760.

Applying this rule to the facts in this case, we find that the trial court erred when it admitted the Castillo report as a business record of the Social Security Administration.⁴ Under the standard of review recited above, we now address the issue of whether such error was harmful.

*4 Tex.R.App.P. 44.1 states: “No judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the error complained of … probably caused the rendition of an improper judgment.” As noted above, the single jury issue in this case was whether Appellant was rendered insane from the underlying injury. The erroneously admitted Castillo report includes the following damning information:

In summary, Mr. Morua did not appear to be ill nor in any distress at the time of the interview. He was rather apathetic and his affect was blunt. His main concern centered around his self-image as a disabled individual who is unable to work. He complained of experiencing dizzy spells, frequent headaches, and convulsions. Mr. Morua seems to have a poor self-concept. His intellectual level is marginal but he is not retarded. However, he has a poor comprehension level and his abstract reasoning ability is limited. He is forgetful and has a poor recall ability. The examination did not reveal any evidence of any personality aberrations. His reality testing is fair but his perceptions are not too clear. (emphasis added).

We believe the language found in the report is tantamount to a declaration that Appellant does not suffer from any form of insanity. Because the only issue to be decided by the jury in this case was whether Appellant was rendered insane, the inclusion of the report was clearly harmful. The harmfulness of the trial court’s error is exacerbated by the fact that the erroneously admitted documents were attached to the records of the Social Security Administration-a government agency. This likely caused the jury to assign additional weight to the erroneously admitted documents when it decided that Appellant was not rendered insane. We sustain Appellant’s Point of Error No. Three.

Having overruled Appellant’s Points of Error Nos. One and Two, sustained Point of Error No. Three, and finding that we need not address Points of Error Nos. Four and Six, we reverse the judgment of the trial court and we remand for a new trial.

	Footnotes
1		The jury charge consisted of the following single question: “Did Francisco Morua receive an injury to the skull on or about April 15, 1985 that was a producing cause of incurable insanity?” “Insanity” was defined as “an illness, disease or condition, other than epilepsy, senility, alcoholism, or mental deficiency, which either substantially impairs the persons’ thought, perception of reality, emotional process or judgment; or grossly impairs behavior as manifested by recent disturbed behavior.”
2		Appellee read the following excerpt from one of the admitted medical reports to the jury: “It says patient talked about events in L.A. when he was involved in drug dealing. This was not a very good time in Francisco’s life, although the pay was good. He moved back to El Paso and has had recent repercussions from his drug dealing days.”
3		Although the record only includes a list of unanswered questions directed to the custodian of records for the Social Security Administration, and a form indicating that the answers to the deposition were presented before Notary Public/Court Reporter, Appellant has not argued that the questions presented to the custodian were not answered. Rather, Appellant only argues that it was erroneous to admit the Castillo Report as a business record of the Social Security Administration. The questions directed to the custodian of records for the Social Security Administration are as follows: 1. State your full name, occupation, and employer. 2. Has Social Security Administration made or caused to be made an records, including memoranda, reports, records, or data compilations, as set forth in the notice of this deposition, which is incorporated by reference herein? 3. Do you have such records as described above? 4. Are these records kept under your care, supervision, custody or control? 5. Is Social Security Administration a regular conducted business activity? 6. Are the records kept by Social Security Administration in the regular course of business? 7. Was it the regular practice of Social Security Administration to make these records? 8. Were these records made by, or from information transmitted by, a person with knowledge of the acts, events, conditions, opinions, or diagnoses stated therein? 9. Were these records made at or near te time the acts, events, conditions, opinions, or diagnoses occurred or with in a reasonable time thereafter? 10. Was the method of preparation of these records trustworthy? 11. Were these records kept as described above?
4		In GT & MC, Inc. v. Texas City Refining, Inc., 822 S.W.2d 252, 258 (Tex.App.-Houston [1st Dist.] 1991, writ denied), the court determined that records created by one entity can become the business records of another entity if the record in question contains evidence that the entity asserting that the record is its business record actually used the record as a part of its business. In GT & MC, Inc., such evidence included “the date of receipt, identity of the recipient, whether the invoices were approved for payment, who approved the invoices for payment, and other information about how the invoices were processed.” Id. at 258. Here, the Castillo report contains no such markings.