concurring.
Although I concur in the result reached by the majority, I do not necessarily concur in all of the reasoning expressed in the opinion. I would reverse for two reasons.
First, although the majority fails to set this fact out, the rule requiring the designation of experts more than thirty days prior to trial does apply to expert witnesses used for rebuttal. See Ellsworth v. Bishop Jewelry, 742 S.W.2d 533, 534 (Tex.App.-Dallas 1987, writ denied); Greenstein v. Burgess, 744 S.W.2d 170, 178-79 (Tex.App.-Waco 1987, writ denied); See also Missouri-Kansas-Texas R.R. v. Alvarez, 703 S.W.2d 367, 371 (Tex.App.-Austin 1986, writ ref’d n.r.e.). Since Dr. Gilliland was not listed in Cook’s original or supplemental answers to Valley’s interrogatories as an expert witness that Cook intended to call, Dr. Gilliland should not have been allowed to testify, over objection, absent a showing of good cause. See Ellsworth, 742 S.W.2d at 534. Assuming, without deciding, that the trial court made an implicit finding of good cause for failure to designate Dr. Gilliland, based on the alleged agreement, I conclude that the trial court abused its discretion in finding good cause on that basis because it ultimately determined that there was no agreement. Consequently, I am of the opinion that the error complained of amounted to such a denial of the rights of appellant as was reasonably calculated to cause and probably did cause rendition of an improper judgment. TEX.R.APP.P. 81(b)(1).
Second, rebuttal must be limited to those issues which were placed in conflict by the adverse party’s evidence during it’s case in chief. Greenstein v. Burgess, 744 S.W.2d at 179; see Ayers v. Harris, 77 Tex. 108, 13 S.W. 768, 773 (1890); TEX.R.CIV.P. 265(f). The issue that the deceased died prior to the fire was not placed in issue by the adverse party, Valley Industries, during its case in chief. Therefore, the court erred in admitting rebuttal testimony on that issue. I am of the opinion that this error amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause rendition of an improper judgment. TEX.R.APP.P. 81(b)(1). Consequently, the judgment of the trial court should be reversed and the case remanded for a new trial.