Gannett Outdoor Co. of Texas v. Kubeczka

• Decision Date: 13 February 1986
• Docket Number: No. A14-85-489-CV,A14-85-489-CV
• Parties: GANNETT OUTDOOR COMPANY OF TEXAS, Appellant, v. Louise Olive KUBECZKA, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 79

710 S.W.2d 79

GANNETT OUTDOOR COMPANY OF TEXAS, Appellant, v. Louise Olive KUBECZKA, Appellee.

No. A14-85-489-CV.

Court of Appeals of Texas,

Houston (14th Dist.).

Feb. 13, 1986.

Rehearing Denied March 13, 1986.

Gerald P. Coley, Don Jackson, Houston, for appellant.

John C. Werner, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and SEARS and ELLIS, JJ.

OPINION

SEARS, Justice.

This is an appeal from a judgment for appellee for damages to her home caused when Appellant's billboard fell during Hurricane Alicia. The controlling question is whether a party may call as a rebuttal witness a person who qualifies as an expert witness but has not been listed in pre-trial discovery as an expert witness who is expected to be called to testify. We believe it is proper. The judgment of the trial court is affirmed.

In August of 1983, during Hurricane Alicia, Appellant's billboard, located on adjacent property, fell on Appellee's house. Appellant tracked the movement of Hurricane Alicia and secured a number of its billboards in the Gulf Coast area by removing face panels to reduce the effect of the force of the wind on the large flat surfaces. Appellant claims the signs were secured in those areas of the city where the weather forecasters believed the hurricane would hit. Appellant alleges it secured approximately twenty-five percent of the billboards it owned in the area. Although the sign next to Appellee's home was one of the largest of Appellant's billboards, it was not secured. The billboard was seventy-eight feet wide and twenty-four feet high. The distance from the top of the sign to the ground was eighty-five feet.

Witnesses testified that approximately six weeks before the hurricane struck, Appellant's manager had received a written report advising him the sign was defective and in need of repairs. The report, filed by an expert hired by Appellant, recommended that steel gussets be installed for support of the sign. These had been ordered but not installed at the time of the hurricane. However, Appellant contends the sign fell because of the unexpected force of the wind, not the pre-existing condition of the sign. The parties make conflicting claims as to the force of the hurricane winds. Appellant claims the winds reached 120 miles per hour, whereas Appellee cites information secured from the National Climatic Data Center that the winds at Houston Intercontinental Airport, located on the north side of Houston, were 51 to 78 miles per hour, and the highest winds at Hobby Airport, located on the southeast side of Houston, were 81 to 99 miles per hour. Appellee's home is also located on the north side of the city, approximately equidistant from the two airports.

Appellee filed suit for property damage under negligence theories. Appellant denied liability and alleged that Appellee's loss was due to an Act of God, the unpredictably high winds and the unpredictable course of the hurricane. The jury awarded Appellee $30,400 as the difference in the fair market value of her home before and after the storm, $20,000 for personal property loss, and $190,000 as exemplary damages.

Appellant brings sixteen points of error on appeal. In the first, it claims the trial court erred in overruling its objection to the testimony of an unannounced expert witness called by Appellee. Appellee had not disclosed this witness's identity in response to Appellant's interrogatories and requests for production. We agree with Appellee that the trial court correctly admitted the witness Aigner's testimony based on the trial court's apparent finding of good cause requiring his testimony.

Appellee contends Aigner was called solely in rebuttal to false testimony given by Appellant's witnesses. Appellant testified no one had advised them of any defect in or repair necessary to the billboard in question, and further denied the existence of any written report concerning the dangerous condition of the billboard. Appellant objected to the testimony of Aigner because he was an expert witness who had not been identified prior to trial pursuant to Rule 166b(2)(e) of the Texas Rules of Civil Procedure.

Rule 166b(2)(e) provides for the discovery of the identity and expected testimony of expert witnesses. A party may also obtain discovery of the identity and location of persons having knowledge of relevant facts. TEX.R.CIV.P. 166b(2)(d). A party is obligated to designate any expert it expects to call and to disclose the substance of his testimony as soon as practicable, but at least thirty days before trial. TEX.R.CIV.P. 166b(5)(b). A party who fails to timely supplement his response to a discovery request in accordance with Rule 166b(5) is not entitled to offer the expert's testimony "unless the trial court finds that good cause sufficient to require admission exists." TEX.R.CIV.P. 215(5). Not only must such good cause exist, but the offeror must show it compels the admission of the testimony. Texas Industries v. Lucas, 634 S.W.2d 748, 758 (Tex.App.--Houston [14th Dist.] 1982), rev'd on other grounds, 696 S.W.2d 372 (Tex.1984).

The trial court overruled the objections and allowed the testimony. Aigner testified that he is a design engineer with experience in inspecting large advertising signs and evaluating their structural soundness. He was hired by Appellant to inspect certain signs and to render a report as to each sign he inspected. Approximately eight weeks before Hurricane Alicia, he inspected the sign in question and provided Appellant with a written report and photographs, informing it of problems with the sign's structure and suggesting repairs. His testimony directly contradicted that of two officers and a foreman of Appellant that there were no reports concerning maintenance or repairs for that sign.

Appellee argues that good cause sufficient to permit Aigner's testimony was shown because he could not anticipate the false testimony of Appellant's witnesses who denied that a report critical of the billboard was given them by an independent consultant. Aigner was therefore called as a rebuttal witness, to refute the surprise testimony, and not as an expert. In Temple v. Zimmer U.S.A. Inc., 678 S.W.2d 723 (Tex.App.--Houston [14th Dist.] 1984, no writ), this court allowed a doctor previously unidentified in pre-trial discovery to testify in a products liability and medical malpractice suit in a rebuttal capacity. We affirmed the judgment of the trial court, observing that the exclusion was within the trial court's discretion.

This is a classic example of an expert witness whose use as a rebuttal witness could not be anticipated prior to the giving of false testimony. Appellant hired Aigner to report to it on the condition of the signs, and it had written notice of the dangerous condition of the billboard in question, as well as what was necessary to make the billboard structurally safe. Apparently Appellant's surprise was that Appellee found Aigner, not that he was called as a witness. In the event Appellant's witness testified truthfully about the condition of the billboard, the inspection by Aigner and the report, Appellee could not have called Aigner as a witness under the rules of procedure; further, his testimony would not have been necessary.

We find that the witness Aigner was fully known to Appellant and that he testified regarding evidence Appellant apparently tried to conceal. Appellant's vice-president of operations testified, subsequent to Aigner's testimony, that Aigner had given him a written report but that he had thrown it away at the end of the year because they had completed the work recommended in it. However, Appellant admitted the wrap-around gussets recommended in the report had not been installed. Appellant offered no testimony contradicting Aigner's testimony. Therefore, without Aigner's testimony, material and relevant facts would have been withheld from the court and the jury.

An appellate court cannot reverse a judgment and order a new trial on the ground that the trial court has committed an error of law unless the appellate court believes the error amounted to such a denial of Appellant's rights as was reasonably calculated to cause and probably did cause the rendition of an improper judgment. TEX.R.CIV.P. 434. We believe the admission of Aigner's testimony did not cause the rendition of an improper judgment, and we find it was based on compelling good cause shown. We overrule the first point of error.

In the second point, Appellant claims the trial court erred in its refusal to submit an instruction on new and independent cause in its jury charge. Appellant objected to the omission at the appropriate time. Appellant claims the billboard fell because of the unanticipated force of the hurricane and not because it was negligent in maintaining the sign or in failing to remove its face panels. It argues the standard of review is whether there was some evidence of new and independent cause introduced at trial to support such an issue, citing Scott v. Atchison, Topeka and Santa Fe Railway, 572 S.W.2d 273 (Tex.1978). In Scott, the court found "much evidence" that the accident in question was caused by an Act of God due to unprecedented rains and flash flooding. The court considered this defensive concept as in the nature of an inferential rebuttal issue, thereby requiring an explanatory instruction, but not submission as a separate issue. Id. at 279. However, an issue concerning an Act of God was not submitted in the present case. Appellant's requested jury instruction stated:

New and independent cause means the act or omission of a separate and independent agency, not reasonably foreseeable, which destroys the causal connection, if any, between the act or omission inquired about and the occurrence in question and thereby becomes the immediate cause of such occurrence.

The distinction between a true intervening act or agency which supersedes the original negligent act and of itself becomes...