Clayton v. FIRST STATE BANK OF GAINESVILLE

777 S.W.2d 577, 1989 Tex. App. LEXIS 2607, 1989 WL 122489
CourtCourt of Appeals of Texas
DecidedSeptember 28, 1989
Docket2-89-004-CV
StatusPublished
Cited by2 cases

This text of 777 S.W.2d 577 (Clayton v. FIRST STATE BANK OF GAINESVILLE) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clayton v. FIRST STATE BANK OF GAINESVILLE, 777 S.W.2d 577, 1989 Tex. App. LEXIS 2607, 1989 WL 122489 (Tex. Ct. App. 1989).

Opinion

OPINION

MEYERS, Justice.

Appellant, in three points of error, attacks the trial court’s ruling allowing ap-pellee to call a witness concerning appellant’s reputation despite appellee’s failure to identify the witness in response to an interrogatory inquiring about all witnesses having knowledge of relevant facts. The court allowed the testimony of the reputation witness under TEX.R.CIV.EVID. 608(a).

We affirm. We find the court’s ruling was in error, but did not cause the rendition of an improper judgment.

Appellant, Don Clayton, had been a customer of appellee, First State Bank of Gainesville (Bank), for a number of years prior to this suit. In 1985, Clayton sold his business for a $69,000 cash down payment and a $200,000 note secured by a lien on the business. The Bank required Clayton to make a collateral assignment of the $200,000 promissory note Clayton had received from the business sale as security for another loan which Clayton had at the Bank. Clayton later attempted to sell the note, but the Bank allegedly blocked the sale. The maker of the note then defaulted on the note and Clayton sued the Bank. Clayton claimed the Bank had orally offered to buy the promissory note but then refused to honor the agreement. Clayton claimed the Bank’s offer prevented him from selling the note to other prospective buyers.

At trial, Clayton presented his case and rested. The Bank then called three witnesses to present its defense of Clayton’s allegations. Outside the presence of the jury, the Bank then announced it would call Phil Adams, the Cooke County District Attorney, to testify as to Clayton’s reputation for truthfulness in the community. The Bank stated it could call Adams as a reputation witness pursuant to TEX.R.CIV. EVID. 608(a) because he was a character witness and Clayton’s untruthful answers during his testimony invited such testimony. Clayton’s attorney vigorously, objected to the Bank’s proposal and pointed out to the court that Adam’s name had not been provided to them as a potential witness in response to their interrogatories and requests for production during pretrial discovery. The Bank then argued that Adams’ identity was not required to be revealed to Clayton in response to his interrogatories and motion to produce because he was not a “fact witness” and Clayton’s interrogatory had asked the Bank to “state the names and addresses of all persons having knowledge of relevant facts in this case.”

Clayton again argued his objection because of the failure to disclose the witness’ identity. The court ruled the Bank could call Adams as a reputation witness in accordance with rule 608(a). Adams then testified, with his testimony limited on direct exam to whether he knew Clayton, knew his reputation for truthfulness in the community, and whether that reputation was good or bad. Adams stated that he knew Clayton, he knew Clayton’s reputa *579 tion for truthfulness in the community, and he knew Clayton’s reputation for truthfulness in the community was bad. Clayton’s attorney then went into an extensive impeachment cross-examination of Adams.

The jury found for the Bank on a take-nothing judgment and Clayton brought his appeal. Clayton’s three points of error all challenge the trial court’s decision to allow Adams’ testimony despite the Bank’s failure to name Adams as a person having knowledge of relevant facts in response to a properly framed interrogatory.

TEX.R.CIV.P. 166b(6) provides, in part, a party who has responded to a request for discovery:

[I]s under a duty seasonably to supplement his response if he obtains information upon the basis of which:
(1) he knows that the response was incorrect or incomplete when made;
(2) he knows that the response though correct and complete when made is no longer true and complete and the circumstances are such that failure to amend the answer is in substance misleading....

Prior to the promulgation of TEX.R.CIV.P. 215(b), 1 courts held the failure of a party to supplement answers to interrogatories resulted in the automatic exclusion of testimony of an unidentified witness. Morrow v. H.E.B., Inc., 714 S.W.2d 297, 297-98 (Tex.1986). A court could allow the testimony of the witness only if good cause existed for allowing the witness to testify. Yeldell v. Holiday Hills Retirement & Nursing Center, Inc., 701 S.W.2d 243, 246 (Tex.1985). The supreme court recently stated that “a showing of good cause pursuant to rule 215(5) must encompass a showing of good cause for the offering party’s failure to respond to proper discovery requests.” Clark v. Trailways, 774 S.W.2d 644, 646 (Tex.1989). The burden of establishing good cause was and is on the party offering the evidence. E.F. Hutton & Co. v. Youngblood, 741 S.W.2d 363, 364 (Tex.1987); Gutierrez v. Dallas Indep. School Dist., 729 S.W.2d 691, 694 (Tex.1987).

The Bank maintained in the trial court and argues on appeal that a good cause showing was and is unnecessary because Adams was called as a witness pursuant to TEX.R.CIV.EVID. 608(a), which allows opinion and reputation testimony. The Bank’s theory is that TEX.R.CIV.P. 215(5) is inapplicable to opinion or reputation witnesses. We do not agree.

Rule 215(5) is applicable to all witnesses whose identity is discoverable. The only question in this case is whether Adams’ identity was discoverable in response to an interrogatory inquiring about fact witnesses.

The Bank persuaded the trial court that a witness who testifies as to reputation only is not required to be disclosed in response to an interrogatory inquiry about fact witnesses. However, the Bank presents us with no authority providing a “character” witness is not a “fact” witness whose identity should not be revealed in response to a properly framed interrogatory inquiring as to same.

The Bank relies on Gannett Outdoor Co. v. Kubeczka, 710 S.W.2d 79, 84 (Tex.App.—Houston [14th Dist.] 1986, no writ.), for the proposition that Adams’ name was not required to be disclosed because he was used as a rebuttal witness. We find the Bank’s reliance to be misplaced because the witness in Gannett was allowed to testify because he was a legitimate rebuttal expert witness necessary to refute surprise testimony. In this case, Adams’ testimony was not necessary to refute surprise testimony. The Bank knew exactly what Clayton would testify to as Clayton had been de *580 posed and testified during trial the same as during his deposition.

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Bluebook (online)
777 S.W.2d 577, 1989 Tex. App. LEXIS 2607, 1989 WL 122489, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clayton-v-first-state-bank-of-gainesville-texapp-1989.