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Goode v. Synergy Corporation2/25/2003
yees on the Goode's hot water heater.
. To establish the due diligence element under Moore v. Jacobs, the Goodes and Hueys simply make a general statement that they conducted a diligent search for anyone with knowledge regarding the lawsuit and that in discovery Synergy never informed them of Frayser. I believe this element requires more than simply filing initial interrogatories. The Goodes' and Hueys' attorneys provided no evidence or description of their investigation into Synergy's theory. They provided no evidence that they even attempted to determine who was responsible for making or installing the ventura plate. The record is silent as to what exactly the Goodes and Hueys did to locate the person or entity responsible for the ventura plate or the identity of anyone who may have had access to work on the Goodes hot water heater.
. The Goodes and Hueys did not provide the trial court with specific references to any supplemental discovery requests, deposition questions or testimony, correspondence between counsel, or any other effort to investigate the identity of the person or entity who could have made or installed the homemade ventura plate on the Goodes' water heater. The majority relies on the fact that the Goodes' and Hueys' attorneys deposed every person identified in the interrogatory response. However, the Goodes and Hueys failed to attach deposition questions or testimony where they sought to determine the identity of Frayser or any other person who could have installed the ventura plate. Due diligence requires that they not simply depose everyone, but that they ask questions to try to elicit the information. Since this was Synergy's sole theory of the case, I believe that due diligence required the Goodes and Hueys to have undertaken such discovery and investigation. However, based on the record before us, it appears that they did not.
. My criticism of the majority's holding is that they have established the bar much too low for this type of extraordinary relief. Based on the majority's holding, the filing of initial interrogatories is sufficient to satisfy the due diligence requirement of Moore v. Jacobs. Therefore, this decision effectively erases the element of due diligence to discover the evidence prior to trial.
. A plaintiff cannot fail to investigate important information and then attempt to assert that information as new evidence at the end of the trial. Diaz v. Methodist Hospital, 46 F. 3d 492, 496 (5th Cir. 1995). The Goodes' hot water heater had been installed over twenty-five years before this incident. Synergy's theory of the cause of the fire was that someone had tampered with the hot water heater. In Diaz the Fifth Circuit stated, "we believe a prudent litigant would independently investigate such a pivotal issue and be less than willing to adopt blindly the statement of the opposing party." Id. Certainly, diligence required that the Goodes and Hueys conduct an exhaustive search for any person or entity who worked on or tampered with the hot water heater. I cannot accept that the Goodes' and Hueys' reliance on the filing of the initial interrogatories alone as sufficient to establish their due diligence. The failure to investigate known possibilities of the cause of the fire can hardly be deemed a "due diligent" investigation.
. In my opinion, the Goodes and Hueys failed to establish due diligence to discover the new evidence. Therefore, I cannot conclude that the trial judge abused his discretion in denying the motion for new trial. I would affirm the trial court's ruling.
SOUTHWICK, P.J., JOINS THIS SEPARATE OPINION.
Editor's Note: Exhibit not available.
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