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Goode v. Synergy Corporation2/25/2003
s of the rule must be strictly met. (Citations omitted). The motion may not be granted unless (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 not merely cumulative or impeaching; (4) the evidence is material; (5) the evidence is such that a new trial would probably produce a new result." Ag Pro, Inc. v. Sakraida, 512 F.2d 141, 143 (5th Cir. 1975), rev'd on other grounds, 425 U.S. 273, 96 S.Ct. 1532, 47 L.Ed.2d 784 (1976), cited with approval in Diaz v. Methodist Hosp., 46 F.3d 492, 495 (5th Cir. 1995). Moore v. Jacobs, 752 So. 2d 1013, 1017 ( ) (Miss. 1999) (emphasis added).
. To prevail, "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). The determinative question, in my opinion, is whether the Goodes and Hueys prudently pursued discovery that, if they had, could have identified the "new evidence" prior to the trial.
. George Frayser's affidavit states that he worked for Synergy when he performed work on the Goodes' hot water heater and gas supply system. Frayser apparently admits that he made and installed the "ventura" plate that was attached to the hot water heater.
. There is no dispute that fire consumed the Goodes' home resulting in the tragic death of Brittany Huey. Over two years passed from the date of this unfortunate incident and the trial of this case. During this time, the parties conducted extensive discovery.
. There were several cause and origin experts who investigated the incident and offered their opinions. The Goodes and Hueys hired Dave Berry, Jr. to investigate the incident and testify as a cause and origin expert witness. Berry concluded that the ventura plate was of no significance in his investigation and was not the cause of the fire. Instead, the Goodes and Hueys theory of liability was consistent with Berry's conclusion and was, in essence, that the Goodes told Synergy's employees they smelled gas and Synergy was negligent because it did nothing to investigate or solve the problem.
. Synergy's theory was that the fire was caused by a homemade ventura plate, which was attached to the Goodes' hot water heater. The Goodes' and Hueys' attorneys were aware of Synergy's theory for quite some time. At trial, the parties presented different theories as to the cause and origin of the fire. However, as part of the motion for new trial, the Goodes and Hueys did not outline or discuss what, if anything, they did to investigate Synergy's theory.
. The Goodes' and Hueys' motion for new trial included a copy of their first interrogatories and Synergy's response. They argue that Synergy did not identify Frayser. However, the Goodes and Hueys do not contend that Synergy's responses were false or misleading. Upon reading Synergy's interrogatory response, it is clear that Synergy did not know who altered the hot water heater. Synergy was not the manufacturer of the hot water heater. Synergy did not sell or install the hot water heater. Synergy did not typically service hot water heaters. Synergy consistently maintained that it provided the propane supply tank, and its contact with the Goodes was through regularly filling the tank. Synergy's records did not indicate any work performed by its emplo
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