dissenting.
I respectfully dissent. I believe we should reverse the judgment for plaintiffs and render judgment for defendant.
After Bynum took possession of the leased space, he complained to John Riddle Interests, his landlord, that: (1) the asphalt in the parking lot was runny; (2) construction debris was left in the area; and (3) the water was cut off on three separate occasions. Bynum claimed that these and other 'problems caused him to lose his business, and he sued John Riddle Interests and Henry S. Miller Company (Miller), among others. After a non jury trial, the trial court rendered judgment for Bynum against Miller and filed findings of fact and conclusions of law to support the judgment.
*59I. REASONABLENESS OF DTPA DAMAGES.
Miller challenges the damages in four points of error, complaining that Bynum did not produce any evidence of “out-of-pocket” or “benefit of the bargain” damages. Hence, Miller argues, Bynum did not meet its burden of proof. I agree.
The majority holds that under the Deceptive Trade Practices Act (DTPA), the aggrieved party is entitled to actual damages, which the majority admits are those damages recoverable under common law, citing W.O. Bankston Nissan, Inc. v. Walters, 754 S.W.2d 127, 128 (Tex.1988). The Bank-ston opinion said the common law damages are either “out-of-pocket” or “benefit of the bargain.” The Bankston opinion then said:
The DTPA permits a Plaintiff to recover either the “out-of-pocket” or the “benefit of the bargain” damages, whichever is greater.
Id. The majority, however, ignores that language and quotes the concurring opinion in Bankston that says the two measures listed by the majority opinion are not exclusive. I do not believe we can rely on a statement in the concurring opinion that is in conflict with the majority opinion.
The majority also cites Birchfield v. Texarkana Memorial Hosp., 747 S.W.2d 361, 367 (Tex.1987). In Birchfield, however, the supreme court discussed the election between exemplary and treble damages under the DTPA. Actual damages were not at issue.
II. EVIDENCE OF MISREPRESENTATIONS.
A. Waiver.
The first question is whether Miller waived its points challenging the findings of misrepresentation. Because Miller did not direct the points of error at the twelve findings of fact, the majority holds that the findings are established as true.
While it is true that Miller did not parenthetically refer to the findings of fact under its points of error, I believe that was merely a technical error.1 Miller challenged those findings in its point of error when it claimed:
Plaintiff is not entitled to an award in this case because there was no evidence or insufficient evidence or, in the alternative, it is against the great weight of the admissible evidence that Henry S. Miller Company had knowledge of the material facts complained of by this buyer but failed to disclose them.
I would hold that Miller preserved its complaint that it had no knowledge that the representations it made on behalf of John Riddle Interests were false. If necessary, Miller could supplement its points of error by adding the parenthetical references to the challenged findings.
B. Liability of agent for statements of the principal.
The majority holds that a real estate agent is absolutely liable for any information it transmits to a customer from the principal. The majority also holds that it is not necessary for a plaintiff to prove the agent knew that the statements were false.
1. The “misrepresentations. ”
The trial court held Miller liable for treble damages for the following representations that Miller made for John Riddle Interests: the shopping center would be a first class shopping center;2 the center was almost wholly leased;3 another beauty *60shop was looking at the space;4 the regulations of the shopping center would be uniformly enforced;5 the construction debris would be removed daily;6 the center would be advertised to induce customers to use the center;7 the rent was justified in light of the services of the center; the shopping center was wholly owned by John Riddle Interests;8 and the manager of the shopping center would be available after hours.
These representations were contained in a brochure prepared by John Riddle Interests. There is no evidence in this record that the representations were not true. The only evidence that John Riddle Interests was not a first class developer was Bynum's conclusionary statement that it was not. Bynum’s testimony, without more, could not establish that John Riddle Interests was not a “first class developer.” Except for the large pads owned by the anchor tenants,9 John Riddle was the owner-developer of the shopping center.
Bynum sued Miller only as the agent of John Riddle Interests. Miller was not sued as the alter ego of John Riddle Interests, and Bynum made no allegations that Miller knew or should have known the representations in the brochure were not true.
2. The majority’s holding.
The majority holds that an agent is responsible for the principal’s misrepresentation, even though the agent is unaware of the falsity of the representation. The majority holds that Miller’s knowledge is not a pertinent issue, and cites Cameron v. Terrell & Garret, Inc., 618 S.W.2d 535, 540-541 (Tex.1981) to support its statement:
[T]he seller’s agent is liable for affirmative misrepresentations, notwithstanding the agent’s lack of knowledge or notice of the falsity thereof.
If we read both the court of appeals’ opinion and the supreme court’s opinion in Cameron, we can infer that the supreme court decided that an agent is always liable for all representations of the principal. Cameron v. Terrell & Garrett, Inc., 599 S.W.2d 680, 682 (Tex.Civ.App.—Fort Worth 1980), rev’d, 618 S.W.2d 535 (Tex.1981). The supreme court in Cameron, however, addressed only the issue of who was a consumer under the DTPA. The court held that an agent was subject to a DTPA suit because the DTPA says that a consumer may sue “any person.” Cameron, 618 S.W.2d at 541.
If the supreme court wants the lower courts and the litigants to understand that agents are strictly liable under the DTPA, I think the court should come out and say so. This is far too important an issue to leave to the implied reasoning of the two Cameron opinions.
If Cameron stands for the principle that an innocent agent in a DTPA suit is responsible for credible statements it transmits on behalf of the principal, it seems to be in conflict with other opinions of the supreme court: Karl and Kelly Co. v. McLerran, 646 S.W.2d 174, 175 (Tex.1983) (the agent-owners of the corporation were not individually liable because the plaintiffs did not plead and prove alter ego); Light v. Wil*61son, 663 S.W.2d 813, 814-815 (Tex.1983) (even though the agent was the sole owner of the corporation and was the corporate representative who made the false statement, the agent was not individually liable because the corporation was not a sham).
Before the Cameron decision, in most of the cases that held an agent liable under the DTPA, the agent was closely related to the corporation. In those cases, the courts held agents liable when at least two of the following factors were present: (1) the corporation was a sham; (2) the agent was an owner, officer, or director of the corporation; (3) the agent knew the statement was false; (4) the agent created the false statement.
For example, in Weitzel v. Barnes, 691 S.W.2d 598, 601 (Tex.1985), the court held the agent was individually liable: the agent was an owner; the agent knew the statement was false; and the agent created the false statement. In Barclay v. Johnson, 686 S.W.2d 334, 336 (Tex.App.—Houston [1st Dist.] 1985, no writ), this Court held the agent was individually liable: the agent was the chairman of the board; the agent knew the statement was false; and the agent created the false statement. In Greater Am. Homebuilders, Inc. v. Gerhart, 708 S.W.2d 8, 11 (Tex.App.—Houston [1st Dist.] 1986, writ ref'd n.r.e), this Court held the agent individually, liable: the corporation was a sham; the agent was the president of the corporation; and the agent created the false statement.
Today, this Court holds an agent liable when none of those factors are present. Here, the corporation was not a sham; the agent was not an owner, officer, or director of the corporation; the agent did not know the statement was false; and the agent did not create the false statement.
I do not think we should follow Cameron and ignore other DTPA cases involving an agent’s liability for representations made for the principal.
III. THE UNIDENTIFIED WITNESS.
On November 3, 1987, Miller filed interrogatories asking Bynum to name all experts and identify each potential party or witness who had knowledge of the facts. Miller also filed a proposed pre-trial order, listing its witnesses, as required by a docket control order. Miller moved to dismiss Bynum’s suit because Bynum did not participate in the joint pre-trial order. The trial court warned Bynum to respond to all discovery but overruled Miller’s motion to dismiss. Bynum did not respond to the interrogatories.
The majority characterizes Bynum’s failure to answer interrogatories as a “technical failure to comply with the discovery rules.” I challenge that assertion. The trial court specifically instructed Bynum to file answers to the interrogatories before trial. Bynum was also required to file a pre-trial order listing witnesses. Violation of direct instructions is hardly a technical violation of the rules.
A. The offer of witnesses.
Bynum offered three witnesses at trial: Bynum (as a fact and an expert witness), Mrs. Bynum (as a fact witness), and By-num’s attorney (as an expert witness on attorneys fees). When Bynum took the stand, Miller objected because Bynum had not responded to the interrogatories and was not listed as a witness. The trial court made a distinction between a fact and expert witness, and permitted Bynum to testify as a fact witness, but not as an expert. Here are the two objections, and the court’s rulings:
Miller’s attorney: Your Honor, we will object to any testimony on the issue regarding what was represented to [By-num] or his testifying as a witness in this matter, based on the facts of their failure to answer interrogatories in this matter.
Bynum’s attorney: Your Honor, if I may respond to that?
They sent us interrogatories. Clearly I didn’t answer them. I overlooked them because right after that they took a two-day deposition of Dr. Bynum, where he answered every one of their questions and gave them copies of every exhibit that we have in this case and everything we had from this thing, which is essen*62tially all that they were asking for, anyway.
So I assumed, then, that counsel, as they never said anything more about answering interrogatories, as we had given them all of the information that they had wanted in the two-day deposition. They cannot show any harm in any way.
The Court: I am going to permit the witness to testify as a party witness, as a fact witness. If they get into expert matters, then I will listen to your objection and look closer at the interrogatories at that time.
Later, when Bynum was offered as an expert witness, the following colloquy took place:
Bynum’s attorney: [Bynum] was not designated in the interrogatories, but he testified about this very same thing in his deposition.
The Court: Well, as I understand the current law, it is automatic that he doesn’t testify unless you show good cause for not listing him.
Bynum’s attorney: Your Honor, good cause would be that we gave information and that they had questioned him thoroughly for three days on this subject....
The Court: [Fjurnishing him for deposition and giving testimony does not satisfy the requirement for his being listed in the interrogatories....
The majority acknowledges that the trial court did not make an express finding of “good cause,” but holds that such a finding is implicit in its ruling permitting Bynum to testify. I do not believe we can read a good cause finding into this record.
Bynum offered two excuses for not filing answers to the interrogatories and listing Bynum as a witness: (1) his attorney “overlooked” the interrogatories; and (2) Bynum was deposed by Miller. The trial court found that furnishing Bynum for deposition did not satisfy the good cause requirement. The trial court then made two conflicting rulings: (1) Bynum could testify as a fact witness; and (2) Bynum could not testify as an expert witness.
Once a litigant proves that its opponent did not list a witness in response to interrogatories, the sanction is automatic. Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986). To escape the automatic sanction, the party who calls the unidentified witness must show good cause why the answers were not supplemented. Gutierrez v. Dallas Indep. School Dist., 729 S.W.2d 691, 694 (Tex.1987). The burden was on Bynum to show a good cause for not identifying witnesses. Here, when the trial court said furnishing Bynum for deposition did not satisfy the good cause requirement, it implicitly found that Bynum did not prove good cause.10 Yet, in spite of that finding, the court only imposed the automatic sanction against Bynum as an expert witness, not as a fact witness.
In the recent case of Sharp v. Broadway Nat. Bank, 784 S.W.2d 669 (1990), the supreme court held that an unidentified witness could not testify, even though his deposition had been taken. The majority says our case is different from Sharp because “it was quite obvious to all concerned that Bynum was a ‘potential’ party witness who had ‘knowledge of relevant facts.’ ” In Sharp, the bank, who was offering two unidentified witnesses, argued that its opponents knew it was going to offer testimony of certain witnesses on a certain subject. The bank orally identified the witnesses in advance of trial. The supreme court rejected the bank’s arguments:
The absence of surprise, unfairness, or ambush does not alone satisfy the good cause exception to the sanction of automatic exclusion.
Sharp, at 671.
The majority identifies another distinction between Sharp and our case. In Sharp, the unidentified witnesses were just witnesses; in this case, the unidentified witness was a party to the suit. The majority cites no authority to support this exception to the rule. If the supreme court *63wants to create an exception for parties, it will do so.11
The majority justifies the admission of Bynum as a fact witness because he was excluded as an expert witness. The supreme court has never made a distinction between the “good cause” necessary to excuse the identification of a fact witness as opposed to an expert witness. Yeldell v. Holiday Hills Retirement and Nursing Center, Inc., 701 S.W.2d 243, 246-47 (Tex.1985). In Gee, 765 S.W.2d at 396, the supreme court applied the same standard to fact witnesses as to expert witnesses. When Bynum failed to show good cause, the trial court should have automatically excluded Bynum as a fact witness as well as an expert witness. Morrow, 714 S.W.2d at 297, 298.
B. The standard of review.
The majority applied the abuse of discretion standard to the review of the question whether there was good cause to permit Bynum to testify. I do not believe that is the correct standard. We use the abuse of discretion standard only when the party offering the witness proves good cause. Gee, 765 S.W.2d at 396. Here, Bynum did not prove good cause. Bynum’s only excuse was that he forgot.
Because there was no proof of good cause, we must use the rule 81(b) standard of review. Gee, 765 S.W.2d at 396; TEX.R. APP.P. 81(b)(1). We must determine: (1) if the trial court committed error; and (2) if the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. TEX.R.APP.P. 81(b)(1). We must review the entire record to evaluate the harm. Gee, 765 S.W.2d at 396.
C. Harm of the testimony.
In Gee, the supreme court said the test of harm is whether the result of the case depended on testimony that should have been excluded. Gee, 765 S.W.2d at 396. The court held that if the testimony was merely cumulative, it was not harmful. Id. If, however, the testimony was dispositive, the testimony was harmful. Gee, 765 S.W.2d at 396; see also Clark v. Trailways, 774 S.W.2d 644 (1989); Boothe v. Hausler, 766 S.W.2d 788, 789 (Tex.1989).
D.Was Bynum’s testimony harmful?
If Bynum’s testimony was dispositive, it was harmful under the Gee rule. In order to determine if Bynum’s testimony was harmful, we must review the record to see if: (1) his testimony was merely cumulative; and (2) his testimony was material.
Bynum’s testimony was not cumulative of other evidence. No other witness testified for Bynum on the issue of liability and damages. Bynum’s testimony was material because he was the only witness to testify about his discussions with Miller and his testimony was essential to his recovery. Without Bynum’s testimony, the trial court would have been compelled to enter a directed verdict for all defendants.
I would hold that the trial court erred in permitting Bynum to testify. A review of the record without his testimony would require us to reverse the judgment and render in favor of Miller. Sharp, at 671-72.
. Rule 74(d), Tex.R.App.P., "Points of Error," requires that the point of error identify the page of the record where the matter complained of is to be found. In an appeal from a non jury case, points of error generally identify the findings of fact that are challenged by a parenthetical reference following the point. Here, for example, the point of error should have been followed by the statement: "(Germane to findings of fact_)."
. At trial, Bynum was the only witness who testified the shopping center was not a first class shopping center. William Rowell and Peter Zie-ben (Miller leasing agents) and John Riddle testified it was.
. Zieben testified that, when Bynum signed the lease, the shopping center was more than 75% leased.
. Rowell testified that he told Bynum that two other beauty parlors were interested in the space. Bynum did not offer any proof to the contrary.
. The testimony at trial was that, except for the anchor tenants, the signs, paint color, and architecture were uniform.
. Zieben testified that it was normal to have some debris around during construction.
. Rowell testified he never told Bynum that the center would be advertised.
. Bynum's attorney asked Zieben to confirm that Couch Mortgage Company owned the center. Zieben said Riddle was the owner. He testified that Couch had owned the raw land before Riddle purchased and developed it.
Zieben testified that every shopping center has "anchor” tenants who own their own pad. They are a draw for the entire center. Zieben testified that John Riddle told him that the center was a John Riddle development. The other witnesses confirmed Zieben’s testimony. No one testified that John Riddle Interests was not the owner and developer.
.The anchor tenants were Walgreen’s, Kroger, K-Mart, and Bennigan’s. Bynum told Miller he wanted to be in a center by a large anchor tenant, and he preferred Kroger.
. In Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 395, n. 2 (Tex.1989), the supreme court said that, although lack of surprise is not the standard, it may be a factor when deciding whether good cause exists for permitting the testimony of an undisclosed witness.
. Two plaintiffs brought this suit: Douglas By-num, Jr. and Starfire Engineering, Inc., d/b/a Tiffany's Hair Styles. The majority’s new rule leaves serious questions: Does each named par-797 S.W.2d — 4 ty get to present one unidentified fact witness, or is each side limited to one unidentified fact witness? Who may a corporation call to testify as its unidentified fact witness?