                                Cite as 2015 Ark. App. 170

                ARKANSAS COURT OF APPEALS
                                      DIVISION III
                                      No. CV-14-657


                                                 Opinion Delivered   March 11, 2015
BRIAN L. MCGEE
                              APPELLANT          APPEAL FROM THE GARLAND
                                                 COUNTY CIRCUIT COURT
V.                                               [NO. 26CV-13-290]

ARCHIE VANGORDER CUSTOM                          HONORABLE JOHN HOMER
HOMES, INC.                                      WRIGHT, JUDGE
                   APPELLEE

                                                 AFFIRMED



                            M. MICHAEL KINARD, Judge

       Appellant Brian McGee purchased a home in Hot Springs, Arkansas, in September

2012. Some remodeling was subsequently performed by appellee Archie VanGorder Custom

Homes, Inc. (VanGorder). In April 2013, VanGorder filed suit, alleging that McGee had

failed to pay for the work. A bench trial was held on January 2, 2014, resulting in judgment

for VanGorder. McGee then filed a motion for new trial, which was denied. On appeal,

McGee argues that the trial court abused its discretion in denying his motion for new trial.

We affirm.

       At trial, McGee’s real-estate agent, Sherry Smith, testified that she contacted Archie

VanGorder on behalf of McGee prior to closing of the real-estate transaction. VanGorder

was a licensed contractor but not a licensed inspector. Smith testified that because it was

apparent that the home needed repairs, it would save McGee money to hire VanGorder
                                Cite as 2015 Ark. App. 170

rather than hiring a separate inspector and a separate contractor. VanGorder, along with a

couple of subcontractors that he selected, walked through the home with Smith and McGee

and compiled a list of things that needed to be repaired. The list, along with proposed bids

for some of the work, was conveyed to Smith and McGee. McGee proceeded with the

purchase of the home, and the repair work began after closing. VanGorder and McGee

presented conflicting testimony on whether McGee had authorized all of the work for which

VanGorder had billed him and whether all of the work had been performed properly or at

all. The trial court found in favor of VanGorder and entered judgment against McGee.

       McGee filed a timely motion for new trial pursuant to Arkansas Rule of Civil

Procedure 59 on the basis of newly discovered evidence and surprise. He alleged that there

was a water leak in his home soon after trial and that this led him to hire third parties to

inspect the home. He claimed that these third parties discovered that at the time he

purchased the home, there was a leak in the roof and the presence of mold. McGee claimed

that these conditions should have been discovered by VanGorder and that he would not have

purchased the home if the conditions had been discovered. McGee contended that he

exercised reasonable diligence to discover defects in the home by hiring VanGorder to

inspect the home. He argued that he would have filed a counterclaim or claimed a setoff had

the condition of the home been known at the time of trial.

       VanGorder filed a response to the motion. A hearing was held and the trial court

took the motion under advisement, but it was deemed denied pursuant to Rule 59(b) before

the trial court took any action on it. McGee filed a timely notice of appeal.


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       Arkansas Rule of Civil Procedure 59(a) provides that a new trial may be granted to

all or any of the parties and on all or part of the claim on the application of the party

aggrieved for any of the eight listed grounds materially affecting the substantial rights of such

party. McGee relies on the grounds of “accident or surprise which ordinary prudence could

not have prevented” and “newly discovered evidence material for the party applying, which

he could not, with reasonable diligence, have discovered and produced at the trial.” Ark.

R. Civ. P. 59(a)(3) & (7). A motion for new trial is addressed to the sound discretion of the

court, and the trial court’s refusal to grant it will not be reversed on appeal unless an abuse

of discretion is shown. Southern v. Highline Technical Innovations, Inc., 2014 Ark. App. 613,

448 S.W.3d 712. On a motion for new trial based on newly discovered evidence, the

burden is on the movant to establish that he could not with reasonable diligence have

discovered and produced the evidence at the time of the trial, that the evidence is not merely

impeaching or cumulative, and that the testimony would probably have changed the result

of the trial. Id.

       McGee argues that he relied on VanGorder’s inspection and that VanGorder should

have discovered the hole and the leak in the roof. McGee claims that he could not have

discovered this evidence sooner because the conditions existed in a closed utility space and

were not visible to him. He argues that he did not have reason to question the quality of

VanGorder’s inspection until the leak occurred after trial.

       VanGorder argues that McGee has failed to establish that he could not have

discovered and produced the evidence at trial with the exercise of reasonable diligence. We


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agree.

         In Swindle v. Lumbermens Mutual Casualty Co., 315 Ark. 415, 869 S.W.2d 681 (1993),

appellants sued several parties after discovering numerous problems with their house within

a year after purchasing it. A jury found against appellants, who then filed a motion for new

trial on several grounds, including surprise and newly discovered evidence. Appellants had

discovered after trial that an appraisal of the house before their purchase indicated that the

house had been built on a spring. The supreme court in Swindle agreed with the trial court

that reasonable diligence in investigating the cause of the numerous repairs made before

appellants’ purchase could have resulted in knowledge of whether there was water under the

house.

         Here, the evidence also suggested that McGee could have discovered the alleged

defects sooner if he had exercised reasonable diligence in investigating the condition of the

home. VanGorder testified at trial that he was not a licensed home inspector, and McGee’s

real-estate agent testified that she was aware of this. VanGorder testified that he was hired

to perform a visual walk-through of the home to see what needed to be repaired.

VanGorder’s response to the motion for new trial, along with his attached affidavit, stated

that because McGee was with him the entire time, McGee was aware that he did not look

at the roof or the attic. Ordinary prudence and reasonable diligence exercised before the

purchase of the home or within the fifteen months between purchase and trial could have

allowed McGee to discover the alleged defects through an inspection. We cannot say that

the trial court abused its discretion in denying the motion for new trial.


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       Affirmed.

       GLADWIN, C.J., and BROWN, J., agree.

       Legacy Law Group, by: Bryan J. Reis, for appellant.

       Taylor & Taylor Law Firm, P.A., by: Andrew M. Taylor and Tasha C. Taylor, for

appellee.




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