Henry S. Miller Co. v. Bynum

• Decision Date: 01 July 1992
• Docket Number: No. D-0494,D-0494
• Parties: HENRY S. MILLER COMPANY, Petitioner, v. Douglas S. BYNUM, Jr. and Starfire Engineering, Inc. d/b/a Tiffany's Hair Styles, Respondents.
• Court: Texas Supreme Court

Page 160

836 S.W.2d 160

HENRY S. MILLER COMPANY, Petitioner, v. Douglas S. BYNUM, Jr. and Starfire Engineering, Inc. d/b/a

Tiffany's Hair Styles, Respondents.

No. D-0494.

Supeme Court of Texas.

July 1, 1992.

Rehearing Overruled Oct. 7, 1992.

Joseph O. Slovacek, Kurt J. Svendson, Houston, James P. Wallace, Austin, for petitioner.

George M. Bishop, Joseph M. Nixon, Houston, for respondents.

OPINION

COOK, Justice.

This case presents two questions: (1) whether there was good cause to permit a named individual party to testify at trial when the party was not listed in response to a discovery request for disclosure of witnesses; and (2) whether the evidence supported the damages awarded. We hold that the trial judge did not abuse his discretion in finding there was good cause sufficient to require admission and that there was some evidence to support the award of damages.

Douglas Bynum, Jr. and Starfire Engineering, Inc. d/b/a Tiffany's Hair Styles leased space in the Wood Winds Shopping Center for a hair-styling salon. Henry S. Miller Co., was a leasing agent for the shopping center and handled Bynum's lease. After Bynum moved into the shopping center, the leased space did not conform to Bynum's expectations so he brought this action against Henry S. Miller Co. ¹ alleging violations of the Deceptive Trade Practices Act (DTPA). TEX.BUS. & COM.CODE §§ 17.41-.63. After a trial to the court, the court rendered judgment in favor of Bynum for $60,426 actual damages and $120,852 additional damages. The court of appeals affirmed. 797 S.W.2d 51.

Miller argues that Bynum was improperly allowed to testify at trial because Bynum was not listed in response to Miller's interrogatory. Miller served Bynum with an interrogatory which included the following question:

4. Please state the identity and location (name, address and telephone number) of each potential party or witness and of each person, whether or not an expert, who has any knowledge of facts or discoverable matters, whether or not admissible, that are or may be relevant to any issues in this lawsuit.

Bynum did not respond to the interrogatory. Bynum was not the only witness that was not named. In addition to himself, Bynum called three unlisted fact witnesses and an unlisted expert witness.

At trial, Miller objected to Bynum's testimony on the ground that Bynum was not disclosed in response to discovery requests. Bynum's counsel stated that he did not respond to the interrogatories because Bynum had been deposed shortly after Bynum received Miller's interrogatories. Bynum sought to testify as a fact witness and as an expert witness. The trial court allowed Bynum to testify as a fact witness regarding facts that were disclosed in his deposition. However, the trial court found that there was no good cause to permit Bynum to testify as an expert witness. Additionally, the trial court did not allow any witnesses other than Bynum to testify because Bynum did not disclose any witnesses and there was no showing of good cause. ²

On appeal, Miller challenged the admission of Bynum's testimony as a fact witness. Bynum did not challenge the exclusion of his testimony as an expert or the exclusion of his other witnesses. The court of appeals affirmed the trial court's admission of Bynum's testimony as a fact witness. The court held that even though the trial court did not make an express finding of good cause permitting Bynum to testify as a fact witness, Bynum showed good cause on the record: (1) Miller had deposed Bynum; and (2) Bynum's trial testimony was limited to the scope of the deposition; and (3) Bynum was a named party to the suit so he would obviously be the principal witness at trial.

I.

Texas Rule of Civil Procedure 215(5) provides that a witness who is not disclosed in response to a discovery request may not testify at trial "unless the trial court finds that good cause sufficient to require admission exists." TEX.R.CIV.P. 215(5); Alvarado v. Farah Manuf. Co., Inc., 830 S.W.2d 911 (Tex.1992). Good cause is the only exception to the automatic sanctions of Rule 215(5). Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 395 (Tex.1989). Therefore, a party must be named in response to an appropriate interrogatory unless there is a showing of good cause. Smith v. Southwest Feed Yards, 835 S.W.2d 89, 90 (Tex.1992).

We held in Smith that good cause may exist to allow testimony of a party witness "when identity is certain and when his or her personal knowledge of relevant facts has been communicated to all other parties, through pleadings by name and response to other discovery at least thirty (30) days in advance of trial." 835 S.W.2d at 91. In Sharp v. Broadway National Bank, 784 S.W.2d 669, 671 (Tex.1990), we held that the fact that a witness had been deposed does not in itself constitute good cause. We affirmed that language in Smith. 835 S.W.2d at 91. In this case, however, there is an additional factor: the witness deposed was the only individual named party. Although neither status as a party nor the fact of a deposition are independently sufficient to establish good cause, under the Smith standard, these factors may combine to satisfy the good cause requirement.

We look with disfavor on the failure of Bynum's counsel to answer the interrogatories after repeated attempts by Miller to obtain answers. The record indicates that Bynum was notified three times that he had not answered the interrogatories and that answers were expected. On these facts, a trial judge certainly has the discretion to impose sanctions for discovery abuse. TEX.R.CIV.P. 215(3). However, we cannot say that the trial judge abused his discretion in this case when he allowed Bynum to testify and limited Bynum's testimony to the facts disclosed in the deposition.

II.

Miller argues that Bynum offered no evidence to support an out-of-pocket or benefit-of-the-bargain measure of damages. See W.O. Bankston Nissan, Inc. v. Walters, 754 S.W.2d 127, 128 (Tex.1988) (out-of-pocket and benefit-of-the-bargain are two measures of damages under the DTPA). However, the DTPA allows recovery for actual damages. TEX.BUS & COM.CODE § 17.50(b)(1). This court has defined actual damages under the DTPA as "the total loss sustained [by the consumer] as a result of the deceptive trade practice." Kish v. Van Note, 692 S.W.2d 463, 466 (Tex.1985); Smith v. Baldwin, 611 S.W.2d 611, 617 (Tex.1981). Actual damages "includ[e] related and reasonably necessary expenses." Kish, 692 S.W.2d at 466; see also DAVID F. BRAGG, PHILIP K. MAXWELL, JOE K. LONGLEY, TEXAS CONSUMER LITIGATION § 8.03 (2d ed. 1983 & Supp.1992). Therefore, such direct measures as "benefit-of-the-bargain" and "out-of-pocket" ³ are not exclusive. We have permitted other damages to ensure that the plaintiff is made whole. See Kish, 692 S.W.2d at 466-68 (damages for removing defective product); White v. Southwestern Bell Telephone Co., 651 S.W.2d 260 (Tex.1983) (lost profits); Smith v. Baldwin, 611 S.W.2d 611, 617 (Tex.1981) (interest on indebtedness); see also Mead v. Johnson Group, Inc., 615 S.W.2d 685, 687 (Tex.1981) (loss of credit); Village Mobile Homes, Inc. v. Porter, 716 S.W.2d 543 (Tex.App.--Austin 1986, writ ref'd n.r.e.) (loss for improvements made). ⁴

One element of the damages Bynum pleaded for was $60,426.00 in lost capital investment. The trial court awarded $60,426.00 in actual damages. Miller's no evidence point challenging these damages contended that the exclusive measures of actual damages under the DTPA are the out-of-pocket and benefit-of-the-bargain measures. Miller's no evidence challenge fails because these measures are not exclusive. Further, even if Miller raised a general no evidence challenge to the damages award, the record contains some evidence to support the trial court's award of these damages to Bynum as part of the actual loss he sustained.

III.

The judgment of the court of appeals is affirmed.

PHILLIPS, C.J., concurs with opinion in which GONZALEZ, J., joins.

HECHT and CORNYN, JJ., dissent with opinions.

PHILLIPS, Chief Justice, concurring.

I concur in the Court's judgment, but I write separately to emphasize the distinction between direct and consequential damages as separate types of actual damages under the Texas Deceptive Trade Practices Act ("DTPA"), Tex.Bus. & Com.Code § 17.41, et seq.

Under the DTPA, damages to a successful plaintiff should compensate for the actual loss sustained as a result of the defendant's conduct. Kish v. Van Note, 692 S.W.2d 463, 466 (Tex.1985). Although we have never expressly stated the elementary rule that consequential damages are a form of actual damages under the DTPA, we have implicitly recognized this proposition by our consistent holdings that "actual damages" are those damages recoverable at common law. See, e.g., W.O. Bankston Nissan, Inc. v. Walters, 754 S.W.2d 127, 128 (Tex.1988); Farrell v. Hunt, 714 S.W.2d 298, 300 (Tex.1986); Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 939 (Tex.), cert. denied, 449 U.S. 1015, 101 S.Ct. 575, 66 L.Ed.2d 474 (1980).

At common law, actual damages can be either "direct" or "consequential." See generally, Nobility Homes of Texas, Inc. v. Shivers, 557 S.W.2d 77, 78 n. 1 (Tex.1977); Dan B. Dobbs, The Law of Remedies § 9.2 (1973). "Direct damages," also known as "general damages," compensate for the loss, damage or injury that is conclusively presumed to have been foreseen or contemplated by the party as a consequence of his breach of contract or wrongful act. Id. For misrepresentation, there are two recognized measures of direct damages. The "out of pocket" measure, which operates on a restitutionary theory, measures the difference between the value of that which was parted with and the value of that which was received. The "benefit of the bargain" measure, which utilizes an expectancy theory, evaluates the difference between the value as represented and the value actually received. W.O. Bankston Nissan, 754 S.W.2d at...