Waldrop v. Young , 104 N.C. App. 294 ( 1991 )

WELLS, Judge.

Defendant assigns as error the trial court’s denial of his Rule 60(b)(2) motion for relief from judgment based on the grounds of newly discovered evidence. Defendant contends that his former employee’s testimony constitutes newly discovered evidence because the witness could not, with due diligence, have been located prior to trial. N.C. Gen. Stat. § 1A, Rule 60(b)(2) provides:

Relief from judgment or order.

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(b) Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

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(2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b).

Plaintiff contends that the testimony of defendant’s potential witness, which is the basis of the motion, is not “newly discovered evidence” within the meaning of Rule 60(b)(2). We agree. Proffered evidence which is merely cumulative or corroborative is not “newly discovered evidence” within the meaning of Rule 60(b)(2). Cole v. Cole, 90 N.C. App. 724, 370 S.E.2d 272 (1988), disc, review denied, 323 N.C. 475 (1988). In this case, the proffered testimony was merely corroborative of the evidence presented by defendant during the trial. At trial, defendant testified about the leaks in the roof and his repeated requests to the landlord to repair them. The affidavit submitted in support of defendant’s motion shows that the new witness would also testify about the existence of the leaks and defendant’s requests for repairs. Thus, the testimony of the new witness would be merely corroborative or cumulative and as such is not newly discovered evidence within the meaning of the Rule. Cole, supra.

Furthermore, to constitute “newly discovered evidence” within the meaning of Rule 60(b)(2), the evidence must be such that it could not have been obtained in time for the original proceeding through the exercise of due diligence. Harris v. Medical Center, 38 N.C. App. 716, 248 S.E.2d 768 (1978), (citing 7 Moore’s Federal Practice § 60.23[4] at 273). The record in this case shows that prior to trial, on several occasions defendant went to the trailer park where the witness lived at the time she was employed by defendant. Upon discovering that the witness had moved, defendant inquired of the park manager and the witness’s next-door neighbor as to her whereabouts. Defendant did not try to subpoena the witness. There is no evidence that defendant tried to contact the witness by mail. Yet the record does indicate that the witness received her W-2 form from defendant, mailed to her last known address. Thus, we conclude that the trial court correctly ruled that defendant did not meet his burden of showing that he exercised due diligence in trying to locate the witness prior to trial.

For the foregoing reasons we hold that the proffered witness’s testimony was not newly discovered evidence within the meaning of Rule 60(b)(2). We have examined defendant’s other argument with respect to the validity of the trial court’s ruling and find it to be without merit. Accordingly, we affirm the trial court’s denial of defendant’s motion for relief from judgment and new trial.

Affirmed.

Judges Parker and Wynn concur.