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Garcia v. Allen6/8/2000
tion for the company, nothing like that?
A. No, sir.
Q. Communications with the doctors?
A. No, sir.
Q. Are you aware of any other situations where persons with physical limitations were released from work in the last-well, I should say two years I guess-in the 1996, 1997 time periods?
A. Was anyone released back to work?
Q. Well, that was released from employment because of physical restrictions.
A. No.
Q. The only one you know of was Roel?
A. Well, I don't know that he was released for that reason.
Q. You don't know why he was released from employment?
A. I don't know that he was released, period.
Q. Okay. Nobody's told you that he's on a medical leave? Maybe it's leave, I'm not sure how they call it now.
A. All I know is that Roel was on sick leave and [end of excerpt].
We review denials of motions for new trial based on newly discovered evidence under an abuse of discretion standard. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983); Alvarez v. Anesthesiology Associates, 967 S.W.2d 871, 882 (Tex. App.-Corpus Christi 1998, no pet.). In order to obtain a new trial, a plaintiff must show that: (1) the evidence has come to their attention since the trial; (2) it was not discovered earlier due to the lack of diligence; (3) the evidence is not cumulative; and (4) it is so material that it would produce a different result if a new trial were granted. Jackson, 660 S.W.2d at 809; Alvarez, 967 S.W.2d at 882. Garcia's argument fails on two points.
First, Garcia has not shown that he exercised diligence in attempting to discover the evidence earlier. At Beltran's deposition, he asked about Hernandez. He could have followed up on that line of questioning with either Beltran or another witness to discover Hernandez' name, and then followed up by questioning Hernandez himself. Indeed, the fact that he knew to ask about Hernandez in that deposition indicates that he had some knowledge of Hernandez's situation. There is no indication that Garcia attempted to follow up on that matter until after summary judgment was granted. We do not believe that Beltran's deposition testimony represents an attempt to hide that evidence from Garcia.
Second, Hernandez's affidavit is not material. The only cause of action that it might be relevant to is whether the corporation impermissibly discriminated against Garcia because of a disability. We have already held that Garcia does not qualify for relief under the disability statute. Evidence that another person was treated in the same way that Garcia was treated does not change the fact that the statute is inapplicable. We overrule Garcia's last point of error, and affirm the judgment of the trial court in all respects.
Publish. Tex. R. App. P. 47.3(b).
Opinion delivered and filed this 8th day of June, 2000.
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