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Goode v. Synergy Corporation2/25/2003
oinder entering an order commensurate with its ruling.
STANDARD OF REVIEW
. Our scope of review is limited in this matter, we will reverse the grant or denial of a motion for new trial only upon the showing of an abuse of discretion by the trial judge. Maxwell v. Illinois Central Gulf R.R., 513 So. 2d 901, 908 (Miss. 1987).
I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE MOTION FOR NEW TRIAL.
. A motion based upon newly discovered evidence may not be granted unless it can be shown that (1) the evidence was discovered following the trial; (2) due diligence on the part of the movant to discover the new evidence is shown or may be inferred; (3) the evidence is material and not cumulative or impeaching; (4) the evidence is such that a new trial would probably produce a new result. Moore v. Jacobs, 752 So. 2d 1013, 1017 ( ) (Miss. 1999). In the present case, as stated above, the new evidence came in the form of a sworn affidavit by George Frayser. Frayser's testimony was undisputedly discovered after trial, yet discovered in time for the Hueys and Goodes to move for a new trial under Mississippi Rule of Civil Procedure 59. In his sworn affidavit, Frayser stated that he was not aware of the case until after the conclusion of the trial and that he had previously serviced the gas supply system inside the Goodes' home. He also stated that he had manufactured the plate that attached to the ventura on the water heater, which controlled the air/gas mixture, and that he had installed it while he was acting in the scope and course of his employment with Synergy. He further stated that the Goodes never participated or oversaw his actions and that the Hueys were not present when he made these alterations.
. The Hueys and the Goodes contend that the trial judge abused his discretion in denying the motion for new trial because this evidence was unknown to the plaintiffs at any time before or during trial, although evidence of this type was diligently sought through discovery. In addition, they contend that the newly discovered evidence was material to the issue of the fire's cause, and would have required that the jury reach a different verdict had they had the opportunity to present it at trial. Claiming the contrary, Synergy asserts that the Goodes and Hueys failed to use "due diligence" in ascertaining the identity of George Frayser; the identity of George Frayser and the testimony provided by him is not material to the case; and the introduction of George Frayser's testimony would not lead to a new result if the jury were allowed to hear it at trial.
a. Due Diligence
. In determining whether the trial judge abused his discretion in denying the motion for new trial, we first look to see whether the Goodes and Hueys demonstrated that due diligence was used in their discovery. "A party asking for a new trial on the ground of newly discovered evidence must satisfy the [trial] court that the evidence has come to his knowledge since the trial and that it was not owing to a want of diligence on his part that it was not discovered sooner." Sullivan v. Heal, 571 So. 2d 278, 281 (Miss. 1990). "Facts implying reasonable diligence must be provided by the movant." N.L.R.B. v. Jacob E. Decker & Sons, 569 F. 2d 357, 363-64 (5th Cir. 1978).
. As to the diligent discovery requirement, the Goodes and Hueys aver that Frayser's identity and testimony were unavailable prior to trial. They further allege that they conducted a diligent search for anyone with knowledge regarding the lawsuit and that in discovery Synergy never informed them of Frayser.
. Synergy claims that the Goodes' and Hueys' lack of due d
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