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Mayer v. STO Industries9/10/1999
ence of any extra judicial admission by either party as to what the contract was. . . . This was substantive evidence directed to the same point as that in issue at the trial, but it was not evidence of the same kind as that adduced at the trial. Snyder, 100 Wash. at 315.
Here, as in Snyder, the memorandum contained evidence directed to the same point as that in issue; it was not evidence of the "same kind as that adduced at trial," and therefore, was neither cumulative, nor merely impeaching.
5. The Evidence Would Change the Result of Trial
Finally, regarding their new trial motion, the Mayers assert not only that the memorandum admitted a product defect, but also directly countered Sto's argument at trial that the damage to the Mayers' house was caused by shoddy construction. We agree that this evidence might have changed the result of trial.
Admission of the memorandum may have changed the result of the trial because it admits what the Mayers were forced to try to prove through other means - that the system has an inherent flaw. Moreover, Remmele testified that the Sto product was not defective and that the memorandum contradicts that testimony. And, as Sto's counsel candidly agreed at oral argument, had the memorandum been introduced at trial, he might not have asked Remmele the final question.
In summary, the Mayers satisfy the requirements for granting a new trial based upon newly discovered evidence.
C. Discovery Sanctions
The Mayers further contend that the trial court erred in declining to rule on their request for leave to file a CR 37 motion for discovery abuse sanctions. They assert that the only remedy available is to grant a new trial. Because we reverse and remand for a new trial based upon the newly discovered evidence, we need not address this issue.
Reversed and remanded for a new trial.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Houghton, J.
We concur:
Morgan, P.J.
Hunt, J.
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