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Click here for the full text of this decision A party seeking a new trial on the ground of newly-discovered evidence must show the trial court that: 1. the evidence has come to his knowledge since the trial; 2. it was not owing to the want of due diligence that it did not come sooner; 3. it is not cumulative; and 4. it is so material that it would probably produce a different result if a new trial were granted. FACTS:This is an arbitration case arising out of a breach-of-contract suit between GJR Management Holdings Inc. and Jack Raus Ltd. In 1998, GJR contracted with Raus for Raus to build an asphalt paving area at a Private Mini Storage Facility. Raus subcontracted a portion of the work to JMG Construction Inc. The contract between GJR and Raus included an arbitration provision. Following alleged failures in the asphalt, GJR initiated arbitration proceedings against Raus. Raus joined JMG in the arbitration. The arbitration hearings were held, resulting in an award in favor of Raus. GJR filed suit against Raus and JMG seeking to vacate the award, claiming arbitrator misconduct and gross mistake. In response, Raus moved to confirm the award. The trial court denied GJR’s motion and confirmed the award, entering a final judgment in accordance with the award. After the judgment was entered, GJR filed a supplemental motion to vacate, claiming newly-discovered evidence of arbitrator partiality. GJR then moved for rehearing and/or new trial on the same grounds. The motion was denied. HOLDING:Affirmed. A party seeking a new trial on the ground of newly-discovered evidence must show the trial court that: 1. the evidence has come to his knowledge since the trial; 2. it was not owing to want of due diligence that it did not come sooner; 3. it is not cumulative; and 4. it 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 (Tex. 1983). In support of its motion for new trial, GJR presented an affidavit by Gregory Cokinos, counsel for GJR. The affidavit alleges the following: 1.on Dec. 2, 2002, Cokinos heard from one of his partners that Steve Paxson, an arbitrator in this case, served as an arbitrator in a case where the award was vacated for Paxson’s non-disclosure of material information; 2.on Dec. 11, 2002, Cokinos obtained copies of the pleadings and orders of that case, Falbaum v. Houston Village Builders Inc., from the district clerk’s office; 3. upon reading the pleadings and orders, Cokinos learned the following: a. Mr. Paxson served as general counsel to the Greater Houston Builders Association; b. Mr. Paxson submitted amicus briefs to the Texas Supreme Court on behalf of GHBA advocating a change in the amount of damages owners can collect from contractors; c. Mr. Paxson has a pro-contractor bias; d. Mr. Paxson refused to follow the law when he arbitrated in Falbaum; and e. Mr. Paxson failed to disclose to the Falbuams that he was advocating a change in the law on behalf of GHBA; and 4. Cokinos would never have agreed to the appointment of Mr. Paxson had he known these facts; he had no reason to question Mr. Paxson’s background or the scope of his disclosures at the time of his nomination and appointment; the newly discovered information is not cumulative; and the information explains why GJR, despite being a prevailing party, received no award of attorneys’ fees. GJR’s motion fails to meet the four-part test for a new trial based on newly-discovered evidence for three reasons: 1. it does not show that the evidence came to GJR’s knowledge since the trial; 2. it does not show that it was not owing to the want of GJR’s due diligence that the information did not come sooner; and 3. it does not show that the evidence is so material that it would have produced a different result had a new trial been granted. According to GJR, the trial court erred in confirming the arbitration award because during the arbitration, Arbitrator Williams committed the following acts of misconduct: 1. Williams surfed the Internet and then examined witnesses based on information he had found; 2. Williams did not make this information available to the parties; and 3. Williams was e-mailing instead of paying attention to the proceedings. The court concludes it has no record to support these allegations. GJR argues that the trial court erred in confirming the award because the amount of the asphalt-paving award and the failure to award GJR attorneys’ fees is a gross mistake. Gross mistake is a mistake that implies bad faith or failure to exercise honest judgment. Callahan & Assocs. v. Orangefield Indep. Sch. Dist., 92 S.W.3d 841 (Tex. 2002). The court concludes it has no record to support these allegations. OPINION:Karen Angelini, J.

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