dissenting.
The court affirms the court of appeals’ judgment that the trial court did not abuse its discretion when it permitted Douglas Bynum, Jr., a party to the suit, to testify as a fact witness when he was not listed in response to a discovery request for disclosure of potential witnesses. Yet this is a case of more than just momentary oversight or inadvertence of counsel in failing to answer a set of interrogatories; it is a case of repeated, conspicuous disregard of the duty to fully and accurately disclose basic factual information about potential witnesses upon request. For the reasons I recently detailed at length in Smith v. Southwest Feed Yards, Ltd., 835 S.W.2d 89 (Tex.1992), and others that I will explain here, I dissent. I also join the views expressed in the concurring opinion of Chief Justice PHILLIPS relating to damages under the Texas Deceptive Trade Practices Act (DTPA).
On November 3, 1987, Henry S. Miller, Co. (Miller) served Douglas Bynum., Jr., and Starfire Engineering, Inc. d/b/a Tiffany’s Hair Service (Bynum) with interrogatories that 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.
(Emphasis added). Bynum never responded, either by answer or objection, to the interrogatory.
Miller sought, on at least three occasions before trial, to obtain an answer to his interrogatories, even though he was not *165required to seek a court order compelling an answer as a predicate to imposition of sanctions, automatic or otherwise. See Tex.R.Civ.P. 215(2). First, the trial court’s docket sheet reflects that Miller filed a motion to compel answers to interrogatories, but the record does not indicate whether a ruling on the motion was ever obtained. Second, Miller filed a Motion to Prevent Presentation of Evidence or to Dismiss on June 16, 1988, based on Bynum’s failure to respond to the interrogatories and Bynum’s failure to participate in a Joint Pretrial Order, required by the trial court’s Docket Control Notice. This order compelled a disclosure of witnesses for trial. See Tex.R.Civ.P. 166(h)1. Although the trial court denied the motion, the court admonished Bynum to respond to the interrogatories. Still, the interrogatories went unanswered. I agree with Miller’s counsel when at one point in the proceedings he alleged: “It appears that the Plaintiff believes that he does not have to prosecute this case according to the prerequisites and guidelines of the Texas Rules of Civil Procedure. ...”
Finally, six days before trial, Miller sought to prevent unnamed witnesses from testifying and to have the case dismissed as a sanction for Bynum’s continuing failure to respond to discovery requests and failure to participate in drafting the Joint Pretrial Order, which the trial court denied. At trial, Bynum was only one of five potential witnesses that were not named. In addition to himself, Bynum called three other unlisted fact witnesses and an unlisted expert witness to testify at the trial. The trial court excluded the testimony of each of these unnamed witnesses, except Bynum2.
When Miller objected to Bynum’s testimony at trial on the ground that Bynum was not disclosed in response to repeated discovery requests, Bynum’s counsel responded: “They sent us interrogatories. Clearly, I didn’t answer them.” The trial court summarized his understanding of the operative rules in this area of the law (a correct statement of the law, until now): “Well, as I understand the current law, it is automatic that he doesn’t testify unless you show good cause for not listing him.” The trial court continued: “[FJurnishing him for deposition and giving testimony does not satisfy the requirement for his being listed in interrogatories.” (emphasis added). Nevertheless, the trial court acceded to Bynum counsel’s entreaty to allow Bynum to testify as a fact witness. The trial court agreed to allow Bynum’s factual testimony, apparently, because of his status as a “party witness.” That status appears to be the sole basis upon which the trial court allowed Bynum’s testimony. However, the trial court explicitly found no good cause to permit Bynum to testify as an expert witness3. The wall the trial court’s ruling erected between admissible factual testimony from Bynum and inad*166missible expert testimony proved to be problematic, and eventually collapsed. After Miller’s counsel repeatedly objected to questions directed to Bynum as calling for expert testimony, only to have those objections repeatedly overruled, the trial court told Miller’s counsel:
Mr. Svendsen, this is a trial before the Court and I think I can separate expert from fact. It would save you and I a lot of time and we could get this trial over with much quicker if you would just bear with it.
Indeed, the Rule 215(5) makes no distinction between the consequences of failing to disclose the identity of potential party and nonparty witnesses, or between expert and factual testimony. The automatic sanction for noncompliance is the same. Moreover, given the modern trend toward relaxing the traditional restrictions on lay witnesses giving opinion testimony, the thin line separating lay and expert testimony on occasion can become almost invisible. See Tex.R.Civ.Evid. 701.
On appeal, Miller renewed his challenge to the admission of Bynum’s testimony as a fact witness. Bynum did not challenge the exclusion of his testimony as an expert witness 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 of appeals 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 had shown good cause on the record because: (1) Miller had deposed Bynum; and (2) Bynum was a named party to the suit so he would obviously be the principal witness at trial. However, this and other courts have held that the fact that a witness has been deposed before trial does not satisfy the rule’s requirement of good cause to permit the testimony of an undisclosed witness over objection. See Sharp v. Broadway Nat. Bank, 784 S.W.2d 669, 671-72 (Tex.1990) (per curiam) (finding no good cause despite deposition of witness); Stiles v. Royal Ins. Co., 798 S.W.2d 591, 594-96 (Tex.App.—Dallas 1990, writ denied) (concluding that previous deposition of a witness did not establish good cause absent proper identification in response to a proper inquiry); Stoll v. Rothchild, 763 S.W.2d 437, 440 (Tex.App.—Houston [14th Dist.] 1988, writ denied) (disclosing witness’ identity in pre-trial summary judgment proceedings and deposition did not constitute good cause).
As to the fact Dr. Bynum was a party, on June 24, 1992, in Smith v. Southwest Feed Yards, Ltd., 835 S.W.2d 89, 94 (Tex.1992), this court held that there is no party exception to the automatic sanction of Rule 215(5).4 But only one week after we handed down Smith, the court holds that a pretrial deposition plus a witness’ status as a party equals good cause. Under the court’s new formulation, two individually inadequate reasons now combine to equal a positive showing of good cause.
The court also states that,
[O]n 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 ⅛ testimony to the facts disclosed in the deposition,
infra at 162 (emphasis added). In other words, the court holds that the trial court would have been within his discretion in excluding or permitting Bynum’s testimony. However, limiting such broad discretion to allow or not allow an undisclosed witness’ testimony at trial was a primary motivation for this court’s adoption of Rule 215(5) in the first place. This is because such broad discretion destroys counsel’s ability to predict who will and who will not *167be permitted to testify at trial. Smith, 835 S.W.2d at 95 (Cornyn, J., dissenting). This rationale also extends to the very real need for counsel to be able to anticipate how a trial court’s treatment of an undisclosed witness will be treated on appeal. Id. at 98 (citing William W. Kilgarlin, What to Do With the Unidentified Expert, 48 Tex.B.J. 1192, 1195 (Nov.1985), which concluded that before the advent of the automatic sanction of exclusion in 1984, “trial courts have been affirmed when they allowed testimony; reversed when they allowed testimony; affirmed when they refused testimony; and, reversed for refusing testimony”).
[S]uch unpredictability and lack of uniformity is a grave disservice to the litigants who we serve and cannot comport with any rational notion of equal justice under the law, or efficient administration of our civil justice system.
Id. at 98.
Surely, as we recently reiterated, Miller was entitled to prepare for trial knowing what witnesses Bynum could call. See Alvarado, 830 S.W.2d at 914; Sharp, 784 S.W.2d at 671. Imagine how puzzled Miller’s counsel must have been when none of his efforts proved successful after he (1) propounded a proper discovery request; (2) moved to compel answers; (3) moved to dismiss the case for discovery abuse; (4) moved once again to prevent unnamed witnesses from testifying, to have Bynum’s pleadings stricken, and the case dismissed as a sanction for Bynum’s continuing failure to respond; and finally (5) sought enforcement of the automatic exclusion for undisclosed witnesses under Rule 215(5). His astonishment at the trial court’s repeated unwillingness to enforce our rules of discovery may be surpassed only by his justifiable frustration at this court’s tolerance of the discovery abuse demonstrated by this record. I do not know what else Miller’s counsel could have done to obtain what should have been his for the mere asking.
While the court fails to mention our recent statement in Alvarado that we are not free to disregard the plain language of Rule 215(5) and should not revise the rule by opinion, the court does precisely that. 830 S.W.2d at 915. Judges and practicing lawyers who have to live with and practice by our rules of procedure can only marvel at the court’s self-contradiction and inconsistency.
Allowing Bynum’s testimony was harmful error because his testimony provided the only evidence of damages. Thus, I would reverse the judgment of the court of appeals and render a take nothing judgment because there is no evidence of damages without Bynum’s improper testimony. Tex.R.App.P. 81(c); E.F. Hutton & Co. v. Youngblood, 741 S.W.2d 363, 364 (Tex.1987); Mobil Oil Corp. v. Frederick, 621 S.W.2d 595, 596 (Tex.1981); National Life and Accident Ins. Co. v. Blagg, 438 S.W.2d 905, 909 (Tex.1969).
Because the court chooses a different course from that advocated here, it proceeds to address Bynum’s damages under the DTP A. On that issue, I agree with the views expressed in Chief Justice PHILLIPS’ concurring opinion.
. Rule 166(h) authorizes the trial court to compel the exchange of a list of direct fact witnesses who will be called to testify at trial, their address, telephone number and the subject of their testimony. This is true despite the fine distinction, long observed by Texas courts, between discovery of the identity of witnesses who will be called to testify at trial per se, and the discovery of persons with knowledge of relevant facts; the former is generally considered privileged work-product while the latter is not. Employers Mutual Liability Ins. Co. v. Butler, 511 S.W.2d 323, 324 (Tex.Civ.App.—Texarkana 1974, writ ref'd n.r.e.).
. The trial court did allow limited rebuttal testimony by Mrs. Bynum even though she was not named in response to the interrogatory. But see Alvarado v. Farah Mfg. Co., Inc., 830 S.W.2d 911 (Tex.1992) (counsel’s intended use of witness for rebuttal purposes only was not good cause).
.I agree with appellate counsel for Miller, who in oral argument before this court said:
Since the trial court clearly found no good cause, then we don’t get into the question whether or not the trial court abused his discretion in letting him testify. Nothing was said by either Bynum’s attorney or the trial court any further as to him testifying in fact witness. No good cause was shown for that other than what was shown as an expert and a logically and reasonably there is no difference, there is no difference between the qualification of a witness, whether it’s expert or fact, you list him or don’t call him. So, since good cause the court said was not found, we don’t get into the question of exercise of discretion.
. That rule provides:
A party who fails to respond to or supplement his response to a request for discovery shall not be entitled to present evidence which the party was under a duty to provide in a response or supplemental response or to offer the testimony of an expert witness or of any other person having knowledge of discoverable matter, unless the trial court finds that good cause sufficient to require admission exists. The burden of establishing good cause is upon the party offering the evidence and good cause must be shown in the record.
Tex.R.Civ.P. 215(5).