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Goode v. Synergy Corporation2/25/2003
he Goodes' billing records reflect that they were never charged any such type of service or repair fee during the entire time Synergy supplied propane to the Goodes. Therefore, since there is no record of such work, they had no information that Frayser worked on the Goodes' home and, therefore, could not have produced his identity. Furthermore, as stated, Synergy argues that the plaintiffs were aware of their theory that the plate caused the fire; therefore, Synergy contends that the plaintiffs should have conducted a diligent search to ascertain the identity of Frayser.
. However, the record reflects that the plaintiffs themselves had no knowledge of Frayser's manufacturing and installing of the homemade ventura plate, and consequently, had no knowledge of the presence of the plate until after the fire. Testifying at the hearing on the post-trial motion, Darene Goode testified that Frayser approached her after the trial and informed her that he had placed the plate on the water heater. Mrs. Goode further testified that neither she nor any members of her family were aware of the homemade plate on the heater before the fire. She also testified that it was not in a visible position to be noticed by the family. She also confirmed that no one in her family manufactured it or altered or was aware that a Synergy employee, Frayser, had attached the plate.
. In addition, George Frayser testified to the same in his affidavit. Frayser testified as follows:
Neither C.E. "Bug" Goode, nor Darene Goode, participated or helped me make this plate. To the best of my recollection, neither C.E. "Bug" Goode, nor Darene Goode, oversaw my actions. I am positive that neither Barry, nor Renee Huey, were present at the Goode home when I made these alterations.
Therefore, although the Goodes and Hueys were made aware of Synergy's defense as to the cause of the fire, they had no explanation of how the ventura plate came to be placed on the water heater.
. We find that the plaintiffs used due diligence in attempting to ascertain the information. The evidence shows that the Goodes could not have discovered his identity earlier. The plaintiffs exercised due diligence in attempting to establish the identity of persons having knowledge of the facts or relevant information material to the action. Every person identified in discovery was deposed and no testimony regarding George Frayser was provided. The fact that George Frayser was an employee of Synergy and performed modifications on their water heater was unknown to them. Therefore, such information could only have come from Synergy, which denies having such information. Even if what Synergy claims is true, that they do not have a record of Frayser's service at the Goodes' home, then given the lack of knowledge by both parties, appellants were excusably ignorant of the fact that Frayser modified the water heater while in the employment of Synergy Corporation. Thus, the Goodes' and Hueys' efforts satisfy the requirements of due diligence.
b. Material Evidence
. Synergy argues that the testimony of Frayser is immaterial to this action. In quoting Diaz, 46 F. 3d at 496, Synergy asserts that the "trial judge was afforded the opportunity to gauge the credibility of these witnesses," and that this Court should not "second guess the trial court." Diaz involved a claim that two physicians had perjured themselves, and newly discovered evidence in the form of an affidavit from another physician disputed the witnesses' testimony. The Fifth Circuit held it paramount to rely on the trial court's discretion as to the credibility of the witnesses' testimony at trial.
. However, Diaz is distinguishable f
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