Wesleyan College v. Weber

Smith, Judge,

dissenting.

I respectfully dissent. While I agree fully with the affirmance of the trial court’s denial of Wesleyan’s motion for directed verdict and j.n.o.v. in the first appeal, Case No. A99A0419, I believe the trial court’s grant of a new trial in Case No. A99A0459 should also be affirmed.

There is a well-established rule of deference to the trial court’s decision in a grant or denial of new trial. The trial court heard all the evidence and observed the witnesses, and in ruling on a motion for new trial based on newly discovered evidence “[that] determination is entitled to great consideration.” Humphrey v. State, 252 Ga. 525, 529 (3) (314 SE2d 436) (1984).

In determining whether any newly discovered evidence would probably produce a different verdict, a trial court should not consider new evidence in isolation. Rather, it should consider the strength and weaknesses of both the state’s and the defendant’s case and the nature and strength of a defendant’s new evidence.

(Citation omitted.) Carl v. State, 234 Ga. App. 61, 62 (1) (506 SE2d 207) (1998). “Furthermore, a motion for new trial based upon alleged newly discovered evidence is addressed to the sound discretion of the trial judge, and the reviewing court will not reverse his judgment overruling the motion, except where there is a manifest abuse of discretion.” (Citations omitted.) Aycock v. State, 188 Ga. 550, 565-566 (4 SE2d 221) (1939). Cantrell v. Red Wing Rollerway, 184 Ga. App. 506 (361 SE2d 720) (1987), appears to require a finding as a matter of law that the trial court’s finding was without evidentiary support, clearly erroneous, and an abuse of discretion. Finally, “[o]n the hearing of a motion for a new trial based on newly discovered evidence the trial judge becomes the trier of the facts. A reviewing court will not in such a case control his discretion as to the credibility of the witnesses.” (Citations and punctuation omitted.) Young v. State, 194 Ga. App. 335, 336 (1) (a) (390 SE2d 305) (1990).

In virtually every case cited by the majority, the appeals courts followed this well-established rule and affirmed the trial court’s decision on a motion for new trial. The sole exception cited by the majority to this pattern of deference to the trial court’s discretion is Hegedus v. Hegedus, 255 Ga. 44, 46 (2) (335 SE2d 284) (1985), in which the Supreme Court reversed the trial court’s denial of a new trial *99because the wife in a divorce case concealed the fact of her remarriage when alimony, child support, and property distribution were in dispute. In Distrib. Concepts Co. v. Hunt, 221 Ga. App. 449, 451 (2) (471 SE2d 539) (1996), we held merely that the superior court did not have the authority under the law to remand a workers’ compensation case to an administrative law judge on the ground of newly discovered evidence. In Dougherty v. State, 7 Ga. App. 91 (66 SE 276) (1909), this court reversed an order denying a motion for new trial, but one judge dissented and one concurred dubitante. While the latter decision has been cited recently by the Supreme Court of Georgia, it was cited in support of the proposition that “‘evidence which removes all doubt upon a material point which was before doubtful is not in a legal sense cumulative.’ [Cit.]” Brown v. State, 264 Ga. 803, 806 (3) (450 SE2d 821) (1994). That holding is particularly apt in the case of this newly discovered witness, Johansen.

Reviewing the standard established in Timberlake v. State, 246 Ga. 488, 491 (271 SE2d 792) (1980), it does not appear that the trial court manifestly abused its discretion in granting a new trial on the basis of the proffered testimony of Johansen. While the trial court’s order granting the motion for new trial is quite brief, the trial court in an earlier letter to all counsel placed on the record its concerns regarding this witness’s testimony. It is apparent that the trial court considered the elements of the Timberlake test and reviewed the new evidence in the context of other evidence presented at trial, as required by Carl v. State, supra.

There was ample evidence from which the trial court could have concluded that the purpose of Johansen’s testimony was not to show his status as a plaintiff’s expert, or to taint Weber’s case. The testimony presented supports the conclusion that those facts were presented to explain the delay in discovery of the witness and Wesleyan’s due diligence. See Wade v. Howard, 232 Ga. App. 55, 56-57 (499 SE2d 652) (1998).

Moreover, substantial evidence was presented that Johansen was a discoverable fact witness. He did not merely give an opinion as an expert based on the observations of others, nor did he simply act in a consultative capacity so as to not be subject to discovery. He was the first forester on the scene, at his estimation within a “couple of weeks”; the debris was still fresh and would have yellowed if as much as three weeks had passed. He also testified that he had examined the tree “quite thoroughly,” while the expert who testified for Wesleyan acknowledged at trial that he had made only a “cursory” examination of the tree. The experts testifying on behalf of Weber at trial examined the tree over a year after the incident. The testimony of Johansen therefore established facts which he had a unique opportunity to observe; he was not merely an opinion witness. This court *100should not appear to encourage in any way the withholding of factual testimony in discovery. See Wade, supra at 60.

Decided May 13, 1999 — Cert. applied for. Chambless, Higdon & Carson, Mary M. Katz, King & Spalding, Frank C. Jones, John P. Brumbaugh, for appellant.

On these facts, the trial court clearly had an ample basis for deciding that Johansen had a unique opportunity to observe the tree shortly after its fall and that his testimony as to what he observed was material to the case and not merely cumulative or impeaching. As the trial court specifically observed, Johansen testified in detail to factual observations which contradicted the factual support for the theory proposed by plaintiff to explain what was wrong with the tree and the reasons for its fall. This countervailing explanation of the condition leading to the deterioration and ultimate collapse of the tree, if believed by the jury, could well have produced a different verdict. Johansen’s testimony was unique, formed the basis for a different theory of causation, and did not impeach another witness.2

In short, the trial cpurt heard all the evidence presented at trial and had the benefit of hearing Johansen’s testimony in person. On a motion for new trial based on newly discovered evidence, the trial court is the trier of fact and judges the credibility of the witnesses. The trial court here was in the best position to judge the relative value and importance of Johansen’s evidence and its potential effect on the verdict. Wesleyan has presented evidence supporting each element of the Timberlake test, and I do not believe the trial court manifestly abused its discretion in granting a new trial.

For these reasons, I respectfully dissent.

I am authorized to state that Presiding Judge Blackburn joins in this dissent.

*101Reynolds & McArthur, W. Carl Reynolds, Katherine L. McArthur, Charles M. Cork III, for appellees.

“A witness may be impeached: a. By disproving the facts to which the witness testifies; b. By proof of contradictory statements previously made by the witness about matters relevant to the testimony and to the case; c. By evidence as to-the witness’s general bad character; or d. By the conviction of the witness for an offense involving moral turpitude.” Suggested Pattern Jury Instructions, Vol. I: Civil Cases, prepared by the Council of Superior Court Judges, p. 16 (3rd ed. 1995); see also OCGA §§ 24-9-82 through 24-9-84. The latter three methods of impeachment are clearly irrelevant; as to the first, Johansen’s testimony did not disprove any facts testified to by another witness, although the opinion he gave differed from that of plaintiff’s experts, who did not observe or testify to the same facts at the same time.