law-motion for new trial based on new evidence | MNT motion | postjudgment motions  

A party may not rely on new evidence in a motion for new trial without showing that the evidence was newly
discovered and could not have been discovered through due diligence prior to trial . Fantasy Ranch, Inc. v. City
of Arlington, 193 S.W.3d 605, 615 (Tex. App.CFort Worth 2006, pet. denied); McMahan v. Greenwood, 108 S.
W.3d 467, 500 (Tex. App.CHouston [14th Dist.] 2003, pet. denied).

MOTION FOR NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE

Tex. R. Civ. P. 270 (providing, in pertinent part, “When it clearly appears to be necessary to the due
administration of justice, the court may permit additional evidence to be offered at any time . . . "); Chapman v.
Abbot, 251 S.W.3d 612, 620 (Tex. App.-Houston [1st Dist.] 2007, no pet.) (setting forth requirements for
obtaining new trial based on newly discovered evidence).
Hammer v. Wood (Tex.App.- Houston [14th Dist.] Aug. 25, 2009)
(
breach of implied warranty for floor installation work, DTPA, directed verdict requested,
take-nothing judgment because
no damages proven)
AFFIRMED: Opinion by
Justice Seymore    
Before Chief Justice Hedges, Justices Anderson and Seymore  
14-07-01081-CV  Gary Hammer, d/b/a Hammer Remodeling
v. Raymond Harold Wood and Stephanie Ann Wood d/b/a Flooring World   
Appeal from County Civil Court at Law No 3 of Harris County
Trial Court Judge:
Linda Storey


A party seeking a new trial on the ground of newly discovered evidence must show: (1) new evidence has been
discovered since trial; (2) the failure to discover the evidence prior to trial was not because of lack of due
diligence; (3) the evidence is not cumulative; and (4) the evidence is so material that it would probably produce
a different verdict.  Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983), overruled on other grounds by
Moritz v. Preiss, 121 S.W.3d 715 (Tex. 2003).  Whether a motion for new trial on the ground of newly
discovered evidence will be granted or refused is generally a matter addressed to the sound discretion of the
trial court.  Id.  However, in matters relating to child custody, it can be error to refuse to grant a motion for new
trial even though the evidence is not newly discovered, when there is an extreme case and the evidence is
sufficiently strong.  See C. v. C., 534 S.W.2d 359, 361 (Tex. Civ. App.-Dallas 1976, writ dism'd w.o.j.) (holding
evidence of a parent's violent temper and striking of children warranted relaxed standard).
In Interest of A.G.C.
(Tex.App..- Houston [14th Dist.] Feb. 19, 2009)(Brown)
(effort to undo voluntary relinquishment,
termination of parental rights, mediated settlement agreement)

A party who seeks a new trial on the ground of newly discovered evidence must demonstrate to the trial court
that (1) the evidence has come to the party's knowledge since the trial, (2) the evidence was not discovered
earlier because of a lack of due diligence, (3) the evidence is not cumulative, and (4) the evidence is so
material that it would probably produce a different result if a new trial were granted. Jackson v. Van Winkle, 660
S.W.2d 807, 809 (Tex. 1983), overruled on other grounds by Moritz v. Preiss, 121 S.W.3d 715, 720-21 (Tex.
2003). On appeal, the issue is whether the trial court's refusal of a new trial involves the violation of a clear
legal right or a manifest abuse of judicial discretion. Jackson, 660 S.W.2d at 809.

PPI Technology Services LP v. Onca Petroleum Development, Inc. (Tex.App.- Houston [1st Dist.] Dec. 11, 2008)
(Nuchia) (
segregation of attorney's fees, motion for new trial based on newly discovered evidence)
In issue three, PPI claims the district court erred by not granting a new trial based on newly discovered
evidence that PPI sent a January 2004 $13,483.74 check to Onca that Onca never cashed. PPI's motion for
new trial contained the affidavit of Randy Sullivan, PPI's chief executive officer, in which Sullivan explained that
he was "considerably hampered in my post-verdict investigation by the fact that the single corporate officer
most familiar with the payments made by PPI to Onca and their underlying calculation, PPI's former Chief
Financial Officer Phil Cook, was no longer with PPI." Sullivan went on to say that "to the best of my knowledge
after reasonable inquiry within PPI, no one employed by PPI in January 2006 was in any way aware of the
uncashed January 2004 check. With Mr. Cook no longer being at the company in January 2006, and under the
time pressures involved in preparing our response, PPI's counsel and I also reasonably relied to some extent
on [a witness's] assertion that PPI had made no monthly payments since December 2003."



Senko v. BP Products North America, Inc. (Tex.App.- Houston [1st Dist.] Nov. 4, 2009)(Keyes)
(
motion for a new trial, summary judgment on claims for negligence, negligence per se, and intentional infliction
of emotional distress affirmed)
AFFIRM TC JUDGMENT: Opinion by Justice Keyes  
Before Justices Keyes, Alcala and Hanks)
01-08-01022-CV David Senko v. BP Products North America, Inc., and Don Parus  
Appeal from 212th District Court of Galveston County
Trial Court Judge:
Hon. Susan Elizabeth Criss
When considering whether to grant motion for a new trial based on the presentation of new evidence, the party
seeking to introduce the new evidence must show that the evidence was newly discovered and could not have
been discovered through due diligence prior to the court’s ruling on the motion for summary judgment.  
McMahan v. Greenwood, 108 S.W.3d 467, 500 (Tex. App.—Houston [14th Dist.] 2003, pet. denied); Indus.
Clearinghouse, Inc. v. Jackson Walker, L.L.P., 162 S.W.3d 384, 389 (Tex. App.—Dallas 2005, pet. denied).
Specifically, in determining whether new evidence should be considered in a motion for new trial, a court must
satisfy four criteria: (1) the evidence came to light after the trial; (2) the failure to produce the evidence earlier
was not due to a lack of effort or attention by the party now seeking to introduce that evidence; (3) the new
evidence is not cumulative; and (4) the new evidence is so material that the trial court would have come to a
different conclusion had the evidence been admitted. Greenwood, 108 S.W.3d at 500; Barbarawi v. Ahmad, No.
14-07099790-CV, 2008 WL 2261433 at *4 (Tex. App.—Houston [14th Dist.] May 27, 2008, no pet.) (mem. op.).
BP moved to strike these exhibits under the Texas Rule of Civil Procedure 324(b)(1). See Tex. R. Civ. P. 324(b)
(1) (requiring point in motion for a new trial on newly discovered evidence as prerequisite for appeal). BP
argued that Senko’s motion for new trial addressed issues already considered by the trial court and therefore
did not comply with Rule 324(b)(1)’s requirement that his motion for new trial indicate that it is based on the
discovery of new evidence. Senko made no effort to meet the standard for the introduction of new evidence.
The trial court granted BP’s motion to strike and denied Senko’s motion for new trial. We hold the trial court did
not abuse its discretion in granting BP’s motion to strike or in denying Senko’s motion for new trial.
We overrule Senko’s first issue.


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