RICHARDSON V. HEAD
CIVIL PROCEDURE: CR 60.02 RELIEF FROM JUDGMENT
PUBLISHED: AFFIRMING; WINE PRESIDING JUDGE WITH BUCKINGHAM & HENRY CONCURRING
DATE RENDERED: 5/11/2007
This is an appeal of a will and codocil contest as to the testator’s signature. The jury determined the decedent did not sign either document. One of the witnesses (an occupational therapist) testifed at the trial as to the inability of the decedent testator who was suffering from multi-system atrophy similar to Parkinson’s disease to orally communicate and write. No motion was filed for a new trial, but a motion under CR 60.02(b) to set aside the judgment was filed claiming perjury by the occupational therapist and offering undated videos and photos of the decedent acting with control and communication skills; and affidavits were offered to date the evidence.
To prevail under CR 60.02, a party must offer newly discovered evidence and demonstrate some significant defect in the trial proceeding or evidence at trial such that a substantial miscarriage of justice will result from the effect of the final judgment.
COA concluded trial court did not abuse discretion. The video tapes and photos were in the possession of one of the parties and medical records available regarding decedent’s condition. The trial court could reasonably find no due diligence in discovery of the evidence or that it was principally of an impeaching character which does not constitute grounds under CR 60.02; or that the evidence was not of a compelling nature to lead to a different result. Affirmed.
Digested by Michael Stevens