Marvin Carter v. Thomas Franklin Shannon

• Court: Court of Appeals of Texas
• Decided: June 19, 1991
• Docket: 03-89-00195-CV
• Status: Published

Opinion

Carter v. Shannon IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN



ON MOTION FOR REHEARING

NO. 3-89-195-CV

MARVIN CARTER, ZELPHA CARTER, BEN E. GLASS AND ALTA E. GLASS,

APPELLANTS

vs.

THOMAS FRANKLIN SHANNON AND JOY SHANNON,

APPELLEES

FROM THE DISTRICT COURT OF BASTROP COUNTY, 355TH JUDICIAL DISTRICT

NO. 18,981, HONORABLE JOHN L. PLACKE, JUDGE PRESIDING

The opinion and judgment issued by this Court on May 8, 1991, are withdrawn, and the following opinion is filed in lieu of the earlier one.

Thomas Franklin Shannon and his wife, Joy Shannon, appellees, purchased a parcel of undeveloped property in the City of Elgin from Marvin and Zelpha Carter and Ben E. and Alta E. Glass, appellants. After discovering that part of the lot would flood during heavy rains, the Shannons successfully sued appellants for violations of the Texas Deceptive Trade Practices and Consumer Protection Act (DTPA), Tex. Bus. & Com. Code Ann. 17.41-.63 (1987 and Supp. 1991). Appellants challenge the judgment by sixty-one points of error. In their barrage of points, appellants complain of the admission of evidence, the submission of certain questions and instructions, the failure to submit other questions, and the insufficiency of the evidence, both legally and factually, to support the jury's verdict. We will modify and affirm the judgment.

In May 1986 the Shannons purchased Lot 3 of the Carter-Glass subdivision. The appellants owned the subdivision, which the Carters had begun developing in 1984. Lot 3 was not part of a mapped flood hazard area. No streams crossed it, although runoff from it collected in a small pond partially covering adjacent lots. At all relevant times, Lot 3 has remained substantially undeveloped, having no gutters, curbs, drainage ditches, or buildings.

The Shannons based their suit on three misrepresentations which they allege appellants made to them about Lot 3: (1) that it received "a little bit" of runoff rather than the large quantitites it actually received; (2) that the Shannons could dig a trench to divert the runoff; and (3) that Lot 3 was a suitable site on which the Shannons could build their house. The jury found that appellants' misrepresentations regarding the nature and usefulness of the lot had damaged the Shannons; in accordance therewith, the court awarded the Shannons damages in the amount of $18,914.44, prejudgment interest, and attorney's fees. Appellants complain of almost every element of the trial in a series of grouped points of error. Because of the plethora of points assigned, we will address appellants' contentions by group rather than individually, as we ordinarily would do.

In their first group of contentions, appellants assert that the evidence is legally or factually insufficient to support the jury's findings that Marvin Carter misrepresented Lot 3's qualities and uses. Assuming these findings lack evidentiary support, appellants argue there is a corresponding insufficiency of evidence to support the jury's finding that one of the two misrepresentations was a producing cause of the the Shannons' injuries.

In reviewing legal and factual sufficiency challenges when the appellant has made both types of attack, we must first determine whether some evidence supports the jury's findings. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 369 (1960). Viewing the evidence in the light most favorable to the appellant, we must consider only supporting evidence and inferences and must disregard all contrary evidence and inferences. Powers and Ratliff, Another Look at "No Evidence" and "Insufficient Evidence", 69 Texas L. Rev. 515, 522 (1991); Renfro Drug Co. v. Lewis, 235 S.W.2d 609, 613 (Tex. 1950). If our review discloses any evidence supporting the jury's findings, we must uphold them.

Both the Shannons testified that Marvin Carter, in showing them Lot 3 initially, had told them the lot received a little bit of runoff but that it was, nevertheless, suitable for home-building. In June 1987, after an unusually heavy rain, the Shannons realized they would not be able to build their home on Lot 3 because more than three-quarters of it had been inundated during the rain. They regarded the inundation as more than "a little bit" of runoff. In addition to their own testimony that they felt they could not safely live in a home on the lot because of potential danger to their young children, the Shannons' experts also testified that, assuming three-quarters of the lot would flood during and immediately following heavy rains, the Shannons could not possibly build the house they wanted on Lot 3. This testimony constitutes some evidence that Mr. Carter represented that Lot 3 had was of a particular quality when it was not and that the Shannons could use it for house-building when they could not. We therefore overrule appellants' first, second, and third points of error.

In deciding a factual sufficiency point, we must examine all the evidence on an issue. We may conclude that the jury has erred only if its finding is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King's Estate, 244 S.W.2d 660, 661-62 (Tex. 1951).

In addition to the testimony of the Shannons and their expert that Lot 3 was prone to flooding and was not suitable for building, the evidence on misrepresentation included Mr. Carter's testimony that he had told the Shannons that Lot 3 received "quite a bit of water." His statement directly contradicts that of the Shannons. Therefore, the jury had to determine which of the witnesses was the more credible and make its finding accordingly. We cannot say, after reviewing all the evidence, that the jury was clearly wrong or manifestly unjust in concluding Mr. Carter had represented the lot to be of a particular quality when it was of another. We do not find the jury's decision to be against the great weight and preponderance of the evidence and, therefore, overrule appellants' complaint in that regard.

Mr. Carter readily admits telling the Shannons that Lot 3 was suitable for their use as a home site. He maintains, however, contrary to the Shannons and their expert, that it is still suitable for home-building in spite of the flooding problem. Apparently, appellants contend that as long as there some manner in which one could build a house on Lot 3, Mr. Carter's statement that the lot was suitable for home-building was not a misrepresentation. We need not determine whether there was factually insufficient evidence to support the jury's finding in this regard. The producing cause question allowed the jury to make an affirmative finding based on a "yes" answer to any one of the three misrepresentation questions. Because we have already determined that the jury based its answer to Question 1A on sufficient evidence, no harm could result even from an improper finding that Mr. Carter misrepresented the use to which Lot 3 could be put. We overrule appellants' first group of points.

By their second group of points, appellants challenge the legal and factual sufficiency to support the jury's finding that Mr. Carter failed to disclose to the Shannons that Lot 3 had previously flooded when he discussed the sale with them. Appellants contend there is no direct evidence that they knew the lot had flooded in the past. They admit, however, that some facts would support an inference of such knowledge. This being the case, we overrule their legal sufficiency points.

The Shannons introduced records showing rainfall amounts for the five years during which appellants had lived in Elgin. During at least three of these five years, heavy rain had fallen on several occasions. In addition, for the preceding four years the Carters lived in a house adjacent to Lot 3. There was evidence that one can see Lot 3 from the Carters' driveway. Further, Mrs. Carter admitted a heavy rain had fallen during the construction of the subdivision's roads. The rainfall had been of such unusual strength that the Carters had been concerned it would wash out the fill they had just brought in. During this same deluge, Rev. Sullivan's slabwork, being laid on the lot adjacent to Lot 3, was partially destroyed by the runoff undercutting it. Mrs. Carter testified that she stood next to Rev. Sullivan's slabwork and looked at its damage. From these facts, the jury could reasonably have inferred that appellants had had an opportunity to observe and had actually observed Lot 3's flooding before selling it to the Shannons. We overrule appellants' factual sufficiency challenges to the jury's finding of failure to disclose.

In their fourth group of points, appellants contend there is legally and factually insufficient evidence to support the jury's findings that appellants had charged a purchase price in excess of the fair market value for Lot 3 and, consequently, that the Shannons had suffered damages in the amount of $18,914.44. Appellants also challenge the admission of certain experts' opinions of Lot 3's fair market value.

The Shannons offered an appraiser's testimony to show that, because of its hidden problem, Lot 3 had a market value lower than the purchase price the Shannons had paid appellants. Although the appraiser, Mr. Jeffcoat, concluded the property would have been worth what the Shannons had paid for it if it had not been subject to flooding, he told the jury that an appraiser would value Lot 3 at a much lower rate because of the flooding stigma attaching to property known to flood. In addition, he testified that the lot was also devalued by the necessity of doing fill work on the lot before being able to build a house there.

Appellants object to Jeffcoat's opinion primarily because they complain it is not based on information reasonably relied on by experts in the field as required by Tex. R. Civ. Evid. 703 (1991). Jeffcoat relied on two types of information in making his decision: (1) statements about Lot 3 made to him by Mr. Rogers, an engineer, and one of the Shannons' other experts: and (2) the Multiple Listing Service, a publication showing the purchase prices of homes in the Austin area. Jeffcoat used the latter information to compare the purchase prices of lots known to flood both before and after the flooding in order to show the percentage diminution in value to be expected once it becomes known the property floods. Appellants complain that the only permissible method of showing diminution in value is by demonstrating a corresponding diminution in value to lots in the same area with the same or a similar problem. We do not agree.

Jeffcoat testified that he was not attempting to establish a correlation between any change in the market value of the homes listed in the Multiple Listing Service and Lot 3; instead, he was trying to show that, in either instance, a decrease in purchase price would result from the stigma attached to property known to have flooding tendencies. Jeffcoat determined that the Shoal Creek homes' selling price diminished anywhere from 30% to 40% because of the flooding experienced in that area. Because he subjectively assessed the Elgin flooding situation as being much less severe than that in the Shoal Creek area, Jeffcoat allowed for a 20% reduction in market value for Lot 3 rather than the 30% or 40% he would have allowed for a property in the Shoal Creek area. Because Jeffcoat's diminution-in-value opinion was based on the general stigma attaching to property which floods rather than on the damages likely to result because of a specific flood hazard, we cannot say that the court abused its discretion in allowing Jeffcoat to consider evidence of the purchase prices of other lots in forming his opinion.

Many times during his testimony, Jeffcoat stated that appraisers routinely rely on the Multiple Listing Service as the basis of various appraisal opinions. Although appellants offered evidence to the contrary, whether given information is of a type reasonably relied on by experts in the field is a matter for preliminary determination by the trial court. See Tex. R. Civ. Evid. 104(a); Moore v. Polish Power, Inc., 720 S.W.2d 183, 192 (Tex. App. 1986, writ ref'd n.r.e.). The court did not abuse its discretion in concluding that Jeffcoat could base his opinion on information reasonably relied on by experts in the field; we overrule all of appellants' points relating to the opinion's admission.

Appellants next complain that no evidence or insufficient evidence supports the jury's finding that Lot 3's fair market value on the day of sale was $10,000. Jeffcoat explained in great detail how he had come to assign his particular determination of market value to Lot 3. First, Lot 3 would have carried an estimated market value of $25,000 had it not had the flooding problem. Jeffcoat then reduced the $25,000 figure to reflect an "as is" market value for Lot 3 on the date of sale. From the $25,000, Jeffcoat deducted: (1) $11,000 for lot preparation for house-building; (2) $5,000 for the stigma attaching to a parcel known to flood; and (3) $4,500 for the half of the lot which Jeffcoat assumed it would not be possible to use during a heavy rain.

The jury would have been entirely within its authority to find either of the last two components to be unreasonable deductions; if they had decided the market value was actually higher than the amount Jeffcoat had assigned to the property, they could have refused to reduce the purchase price by either of the sums and awarded the Shannons an amount in excess of what the Shannons sought in damages. They did not. Therefore, we overrule appellants' legal sufficiency challenge to the finding that Mr. Carter's misrepresentations were the producing damages to the Shannons in the amount of $18,914.44. Our review of all the damages evidence convinces us that the jury's findings on those issues and on causation were correct. Although both issues involved disputed facts, the jury's determinations were not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. We overrule appellants' factual sufficiency points in these regards.

By their seventh group of points, appellants complain of the court's refusal to allow them to offer proof of the Shannons' alleged failure to give proper notice of their claim. They also contend that the court erred in refusing to grant their plea in abatement urged for the same reason and in refusing to submit a jury question seeking a jury resolution of the proper notice issue. DTPA § 17.505(a) required the Shannons to send appellants notice of their claim before filing suit. That section provides, in relevant part:

As a prerequisite to filing a suit seeking damages under Subdivision (1) of Subsection (b) of Section 17.50 of this subchapter against any person, a consumer shall give written notice to the person at least 60 days before filing the suit advising the person in reasonable detail of the consumer's specific complaint and the amount of actual damages and expenses, including attorneys' fees, if any, reasonably incurred by the consumer in asserting the claim against the defendant.

On July 6, 1987, the Shannons' attorney sent appellants a letter specifically advising them that the Shannons considered Mr. Carter's statements, made to them during the attempted sale of Lot 3, to have been misrepresentations and, therefore, violations of the DTPA. The July 6, 1987, letter also advised appellants that the Shannons had incurred certain specific costs because of the violations; the letter enumerated individual costs and apprised appellants of the total sum the Shannons claimed as damages. After receiving an unsatisfactory reply from appellants' counsel, the Shannons filed suit October 14, 1987.

The demand letter was unquestionably sent and received in a timely manner; more than the requisite 30 days passed between the demand letter's date and filing of suit. Appellants argue that, because the Shannons did not include an offer to reconvey Lot 3 or a request for rescission of their warranty deed in their demand letter, they have not effected a proper or good faith demand. Apparently, appellants' position is that, until appellants were persuaded that the Shannons were making a good faith offer to settle, appellants were entitled to an abatement of the action. Barring abatement, appellants assert a right to present evidence of "improper" notice and to obtain a jury finding that the notice given did not comply with § 17.505(a). We do not agree. § 17.505(a) requires only that a demand letter notify a seller of his consumer's specific complaint in reasonable detail and of the amount of actual damages and expenses sought, including attorneys' fees. Jim Walter Homes, Inc. v. Valencia, 690 S.W.2d 239, 242 (Tex. 1985). The demand letters in this case have done both of those things.

Appellants rely on Zak v. Parks, 729 S.W.2d 875 (Tex. App. 1987, no writ), for the proposition that a demand not made in good faith fails to comply with § 17.505(a). Therefore, they claim they are entitled to abate the proceedings until the Shannons make a good faith demand or, in the alternative, that they should have been permitted to show at trial that the Shannons never gave proper notice. Appellants have misread Zak. That case does not deal with a seller's ability to obtain an abatement or the admission of evidence of the buyer's failure to give proper notice, but with claims being brought in bad faith or being made solely for purposes of harrassment. The Zak court did conclude that the buyer had made the demand with "manifest ill will"; however, the opinion by no means implies that § 17.505(a) imposes an affirmative duty on consumers to make a demand which sellers would consider to have been made in good faith. Appellants cite no authority for the proposition that a demand for money damages without a corresponding offer to reconvey property constitutes bad faith as a matter of law. Nor, under the circumstances here, have appellants shown that the omission of an offer to reconvey or rescind the warranty deed was even deliberate. We overrule this group of appellants' points.

Appellants' ninth group of points concerns an expert witness, Mr. Roland. During discovery, appellants apparently responded to one of the Shannons' interrogatories by designating Roland as an expert. After the Shannons' counsel had deposed Roland, appellants decided not to elicit his testimony at trial. At some point after the deposition but before trial, the Shannons decided to subpeona Roland to ensure his presence. When Roland arrived and the Shannons called him to testify, appellants objected that the Shannons had not designated the witness as their expert in response to interrogatories requesting such a designation; therefore, appellants argued, the Shannons were prohibited from calling Roland as a witness. After hearing argument from both sides, the court allowed Roland to testify. The appellants claim this action constitutes reversible error.

In order to obtain reversal of a judgment, the party seeking review bears the burden of showing that the judgment is erroneous. The Englander Co. v. Kennedy, 428 S.W.2d 806, 807 (Tex. 1968); Temple v. Dull, 640 S.W.2d 639 (Tex. App. 1982, no writ). Appellants also have the burden of making the appellate record for the reviewing court to consider and on which it must base its determination of reversible error. Woodruff v. Cook, 721 S.W.2d 865, 871 (Tex. App. 1986, writ ref'd n.r.e.); Evans v. State Farm Mutual Auto Ins. Co., 685 S.W.2d 765, 768 (Tex. App. 1985, writ ref'd n.r.e.).

Appellants here have not included in the appellate record either their interrogatories or the Shannons' answers to the interrogatories. Furthermore, the page in the statement of facts to which appellants refer in their brief does not indicate that the trial court examined the interrogatories or answers thereto before ruling. As the court in Temple observed: "We cannot review the terms of a[n interrogatory answer] which is not before us." 640 S.W.2d at 639.

In addition, the court inquired into the substance of Roland's testimony. After the Shannons' counsel summarized the testimony he wanted to elicit from Roland, the court made the following comment:

That's really no different than the testimony of other witnesses and their opinion that three-quarters of the lot was covered or two-thirds.

* * *

I don't see that that's going to make a whole bunch of difference really.

Thereafter, the court permitted Roland to testify and give his opinion about the extent to which the land flooded, over appellants' objection.

Appellants urge us to hold that it is impermissible to serve a subpeona on an opposing party's expert without having designated him as an expert. We express no view on that question. In addition to failing to carry their burden of showing the court's error in allowing the subpeona to issue, appellants have not shown harm resulting to them from Roland's testimony. See Tex. R. App. P. 81(b). The erroneous admission of cumulative evidence is not harmful. Pyle v. Southern Pacific Transp. Co., 774 S.W.2d 693 (Tex. App. 1989, writ den.). Even when improperly admitted evidence is an expert's opinion, the error will be considered harmless if the objecting party has previously permitted the introduction of similar evidence without objecting. Birchfield v. Texarkana Memorial Hosp., 747 S.W.2d 361, 365 (Tex. 1987); see also Persons v. Persons, 666 S.W.2d 560, 564 (Tex. App. 1984, writ ref'd n.r.e.). As the trial court correctly concluded, before the Shannons called Roland to testify, other evidence had been admitted on the matters on which he would offer evidence; therefore, admitting his testimony, even if error, was not harmful. We overrule this group of arguments.

In their tenth group of points, appellants complain about certain portions of Mr. Shannon's testimony. Appellants argue that Mr. Shannon had no personal knowledge of the following matters and that, therefore, the court should not have allowed him to testify that: (1) Lot 3 was two-thirds to three-quarters inundated during the heavy rains; (2) one could see the flooding of Lot 3 from the Carters' kitchen window; (3) particular quantities of rain fell on particular dates; and (4) that Lot 3 had a certain market value at the time of sale or thereafter. We have reviewed Mr. Shannon's testimony and conclude that, even assuming appellants' contentions are correct, they have shown no harm from any error. See Tex. R. App. P. 81(b)(1) (1991). We therefore overrule this group of points in its entirety.

Appellants' twelfth group of points dispute the propriety of the trial court's permitting the Shannons to call Gary Cooke, the Elgin Public Works Director, to testify. The Shannons called Mr. Cooke in rebuttal to another of the Shannons' witnesses who had unexpectedly attributed Lot 3's flooding problem to drainage work begun after the date of sale. Appellants claim Mr. Cooke's name was not disclosed in response to a proper interrogatory seeking the names of persons with knowledge of relevant facts. Therefore, they argue, he should not have been allowed to offer rebuttal testimony.

As we have noted, appellants bear the burden of showing error on appeal. As we have also previously observed, appellants have failed to include in their transcript for this Court any interrogatories sent or responses made. Without either the interrogatories or the responses, we cannot know whether appellants are correct in their assertion that the Shannons did not disclose Mr. Cooke's name in answer to an appropriate interrogatory. We therefore overrule appellants' complaints about Mr. Cooke's testimony.

As their final challenge, appellants argue that the trial court erred in admitting evidence of Mr. Carter's character for truthfulness while at the same time excluding evidence allegedly probative of Mr. Shannon's lack of character for truthfulness. Specifically, appellants claim it was error for the court to permit two witnesses, Judge Raesz and Rev. Sullivan, both Carter-Glass subdivision residents, to testify that Mr. Carter had a bad character for truthfulness. In addition, appellants claim that Judge Raesz and Rev. Sullivan improperly based their opinions of Mr. Carter on business dealings they had had with Mr. Carter rather than on personal relationships. Appellants also argue the court erred in refusing to permit them to show Mr. Shannon's prior convictions for passing a forged check and for aggravated assault with a deadly weapon.

Texas Rule of Civil Evidence 609(a) governs the admissibility of prior criminal convictions in a civil suit and provides:

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicted from him or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party.

(Emphasis added.) The decision to admit evidence of a prior conviction lies within the trial court's discretion. Landry v. Travelers Ins. Co., 458 S.W.2d 649, 651 (Tex. 1970). We will not disturb the exercise of discretion absent some showing by the appellants that exclusion of the conviction was unreasonable or arbitrary. Id. Convictions may fall anywhere on the time spectrum. Some are so remote as to be inadmissible as a matter of law; some are so close in time that it would always be error to exclude them on that basis. However, some convictions necessarily fall in the grey area of remoteness lying between the two extremes. In that event, the admissibility of the conviction is within the sole discretion of the trial court. Id.; Harker v. Coastal Engineering, Inc., 672 S.W.2d 517, 522 (Tex. App. 1984, writ ref'd n.r.e.). Although Harker reiterates a pre-Rule holding, we conclude that Rule 609(a) does involve a balancing test for the trial court; the court must weigh the probative value of the conviction against its prejudicial effect on the party before admitting it, even if the conviction falls within the 10-year remoteness limit imposed by Rule 609(b).

Mr. Shannon's most recent felony conviction was nine years old at the time of trial; he had completed nine out of the ten years' probation to which he had been sentenced. During those nine years, he had not committed another offense or had his probation revoked by the State. In addition, the more recent felony (assault) was one going to his character for acting violently, not one going to the issue of truthfulness. Under these circumstances, we conclude the trial court did not abuse its discretion by concluding that the probative value of Mr. Shannon's convictions did not outweigh their prejudicial effect. We overrule appellants' points on Mr. Shannon's prior convictions.

Appellants also complain that the court erred in permitting Rev. Sullivan and Judge Raesz to give their opinions of Mr. Carter's character for truthfulness. Appellants contend that both witnesses had previously demonstrated their lack of knowledge about Mr. Carter's reputation for truthfulness within the community and that their opinions were, therefore, impermissibly based on their individual business dealings with him.

Judge Raesz testified during the Shannons' case-in-chief, stating what he knew about Lot 3's water level during heavy rains and offering his opinion that the lot would be unsuitable as a building site for the primary residence of several young children. After Mr. Carter testified during defendants' case-in-chief, the Shannons recalled Judge Raesz to the stand for the specific purpose of offering his opinion of Mr. Carter's character for truthfulness. The following ensued:

MR. LOCKWOOD (The Shannons' counsel): Do you have an opinion, sir, as to the character of Marvin Carter for truthfulness?

MR. WILLIAMS (Appellants' counsel): Your Honor, I'm going to object to that on the basis that the witness has previously testified on that issue and it's clear from his testimony that what he based that on is not -- not his opinion as to truthfulness but whether as to honesty and veracity and those are not character issues that -- character traits that are at issue in this trial.

THE COURT: Ask the question again.

MR. LOCKWOOD: Do you have an opinion, sir, as to the character of Marvin Carter for truthfulness?

MR. WILLIAMS: I object again, Judge.

THE COURT: And --

MR. WILLIAMS: Your Honor, the witness has previously made clear that his answer to that is based upon certain things which indicate that his opinion is an opinion as to honesty, not as to truthfulness. Honesty is not a character trait here. It is different from truthfulness. And I'm going to object for that reason.

THE COURT: You want to ask him about truthfulness?

MR. LOCKWOOD: That's what I did ask him.

THE COURT: Okay.

MR. WILLIAMS: And I'm objecting.

THE COURT: Would you rather have honesty?

MR. WILLIAMS: No, sir. Our point is that this witness shouldn't be here at all. Honesty is not a character trait that is at issue in this case. Truthfulness, according to this witness' previous deposition, his opinion is based upon things which indicate that it is, in fact, an opinion as to honesty. So he's already testified that he essentially does not have an opinion as to truthfulness but rather as to honesty. Although it may sound weird to the Jury, the law recognizes a difference between those two character --

THE COURT: Do you have an opinion as to truthfulness?

THE WITNESS: I do.

MR. WILLIAMS: May I have a ruling --

THE COURT: Yes. Overruled.

MR. WILLIAMS: -- on my objection?

THE COURT: Yes.

The above-cited colloquy preserves for our review only the question of whether Judge Raesz was actually offering an opinion of Mr. Carter's character for truthfulness rather than an opinion of his character for honesty. Appellants' counsel made no objection that Judge Raesz had an improper basis for his opinion. In addition, the exchange between the court, the witness, and the two counsel indicates that the witness knew he was being asked to offer his opinion as to truthfulness rather than honesty. We overrule appellants' contentions with respect to the admission of Judge Raesz' opinion.

The Shannons had also called Rev. Sullivan to testify during their case-in-chief about certain events taking place within the subdivision. After Mr. Carter testified, the Shannons recalled Rev. Sullivan for the express purpose of obtaining his opinion of Mr. Carter's character for truthfulness. Appellants' counsel explored Rev. Sullivan's basis for his opinion on voir dire and established that the pastor was basing his opinion solely on personal experience. However, appellants' counsel did not object to Rev. Sullivan's lack of basis for his opinion, but to his alleged attempt to testify to an opinion about character for honesty rather than truthfulness. Appellants have, therefore, failed to preserve any error that might have resulted to them from Rev. Sullivan's opinion of Mr. Carter as having an untruthful character. Further, the exchange between court and counsel made clear to the witness and the jury that Rev. Sullivan was offering his opinion of Mr. Carter's character for truthfulness rather than for honesty. We overrule appellants' complaints about Rev. Sullivan's opinion testimony.

Appellants also contend that the trial court erred in permitting Rev. Sullivan to testify about specific instances in which Mr. Carter may have exhibited untruthful tendencies. The following exchange is the basis for this complaint:

MR. LOCKWOOD (The Shannons' counsel): Specifically, sir, did Mr. Carter's lack of truthfulness have to do with something with the sale of the lot in the Carter-Glass subdivision?

MR. WILLIAMS: Your Honor, I object to that as getting into specific instances of conduct.

THE COURT: I'm going to let him answer that question, but that's as far as we're going to go.

THE WITNESS: Would you ask it again, please?

MR. LOCKWOOD: Yes, sir. Did Mr. Carter's conduct about which you've -- with regard to which you formed your opinion as to his lack of truthfulness have something to do with anything relating to the Carter-Glass subdivision?

THE WITNESS: Yes.

At this point, rather than reurging his objection, appellants' counsel began his cross-examination of the witness as follows:

MR. WILLIAMS: Are you absolutely sure that it had something to do with the subdivision?

THE WITNESS: It was a representation made to me in order to sell me a lot in the subdivision.

This exchange leaves us no choice but to conclude that appellants opened the door to the testimony of which they now complain. We overrule this and all of appellants' other complaints related to the admission of character evidence.

Appellants have several other points of error. We have reviewed them, find them to be without merit, and overrule them.

By cross-point, appellees assert that the trial court erred by denying them permission to amend their petition after the verdict but before the judgment. Appellees had moved to amend so that their pleadings would support the award of pre-judgment interest at a 10% rate rather than the 6% pleaded. Appellees first contend that they were entitled to the 10% award because they succeeded on their DTPA claim. We agree that they were entitled to receive pre-judgment interest at the 10% rate. See Tex. Rev. Civ. Stat. Ann. art. 5069-1.05, § 2 (Supp. 1991); McCann v. Brown, 725 S.W.2d 822, 826 (Tex. App. 1987, no writ).

Second, appellees claim the trial court lacked the discretion to prevent them from so amending their petition because Rule 66 of the Texas Rules of Civil Procedure provides, in part:

If . . . during the trial any defect, fault or omission in a pleading, either of form or substance, is called to the attention of the court, the court may allow the pleadings to be amended and shall do so freely when . . . the objecting party fails to satisfy the court that the allowance of such amendment would prejudice him . . . .

Tex. R. Civ. P. 66.

The supreme court recently reaffirmed the proposition that a party's right to file a trial amendment is subject only to the opposing party's right to show prejudicial surprise. Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938, 940 (Tex. 1990). Appellees argue that, in the present case, appellants could not have been surprised by the trial amendment because they could not have altered their trial strategy to prevent recovery of pre-judgment interest at a rate higher than six percent. In essence, appellees argue that, as a matter of law, appellants could not suffer prejudicial surprise from the requested amendment. We agree. Accordingly, we conclude that the trial court abused its discretion by denying appellees' requested trial amendment. We sustain appellees' cross-point.

We modify the trial court's judgment to permit appellees to recover 10% pre-judgment interest and, as modified, affirm.

J. Woodfin Jones, Justice

[Before Chief Justice Carroll, Justices Jones and Kidd]

Modified and, as Modified, Affirmed

Filed: June 19, 1991

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