In passing on a Super.R.Civ.P. 60(b)(2) motion to vacate or modify a judgment based on newly discovered evidence, the trial justice applies the same standard applicable to a Super.R.Civ.P. 59 motion for a new trial. Corrente v. Town of Coventry, 116 R.I. 145, 147, 352 A.2d 654, 655-56 (1976). When the new evidence is material and controlling, such that it likely would have changed the outcome of the case and was not, by the exercise of due diligence, discoverable at the time of the hearing, the motion should be granted.
The motion "should not be granted unless the newly discovered evidence is of such a material and controlling nature that it would probably change the outcome of the case and unless it was not by the exercise of ordinary diligence discoverable in time to be presented at the original hearing." Corrente v. Town of Coventry, 116 R.I. 145, 147, 352 A.2d 654, 655 (1976). Essentially, R.C.P. 60(b)(2) sets out a two-part test: 1) the evidence must be newly discovered, and 2) said evidence was not discoverable by the exercise of due diligence.
" Gray v. Stillman White Co., 522 A.2d 737, 741 (R.I. 1987); see also Bailey v. Algonquin Gas Transmission Co., 788 A.2d 478, 482 (R.I. 2002). Under Rule 60(b)(2) of the Superior Court Rules of Civil Procedure and our previous case law, a motion to vacate a judgment should not be granted on the grounds of newly discovered evidence unless (1) the evidence is material enough that it probably would change the outcome of the proceedings and (2) "the evidence was not discoverable at the time of the original hearing by the exercise of ordinary diligence." Forcier v. Forcier, 558 A.2d 212, 213 (R.I. 1989); see also Corrente v. Town of Coventry, 116 R.I. 145, 147, 352 A.2d 654, 655 (1976). The plaintiff insists that she exercised due diligence, even though she did not cause Mrs. Rampino to be deposed.
Second, a trial justice should not grant a motion to vacate a judgment (or, as here, an order) under Rule 60(b) for newly discovered evidence "unless the newly discovered evidence is of such a material and controlling nature that it would probably change the outcome of the case and unless it was not by the exercise of ordinary diligence discoverable in time to be presented at the original hearing." Corrente v. Town of Coventry, 116 R.I. 145, 147, 352 A.2d 654, 655 (1976). Here, the newly discovered evidence that plaintiffs introduced dealt mainly with Giuliano's medical condition. But this evidence was not "newly discovered."
We have held that a motion for relief from a judgment or order on the grounds of newly discovered evidence should not be granted unless the evidence was not discoverable at the time of the original hearing by the exercise of ordinary diligence and unless the evidence is material enough probably to change the outcome of the original hearing. Corrente v. Town of Coventry, 116 R.I. 145, 147, 352 A.2d 654, 655 (1976); Super. R. Civ. P. 60(b)(2). Joseph has not established that he acted in the exercise of ordinary diligence.
Second, the evidence must not have been discoverable through the exercise of due diligence in time for presentation at the original trial. Corrente v. Town of Coventry, 116 R.I. 145, 147, 352 A.2d 654, 655 (1976); Addeo Loan Co. v. Manocchio, 112 R.I. 590, 596-97, 313 A.2d 649, 652 (1974). Assuming arguendo that this release would constitute substantial evidence and would alter this case by providing defendants with a solid defense, we are not convinced, as the trial justice was not, that defendants exercised the requisite due diligence and could not have discovered this evidence in time for the trial.
Courts in this state have granted new trials on the grounds of newly discovered evidence. See, e.g., Corrente v. Coventry, 116 R.I. 145, 147, 352 A.2d 654, 655 (1976). To demonstrate entitlement to a new trial, the moving party has to meet a two "pronged" test:
A motion to vacate on the grounds of newly discovered evidence, should not be granted "unless the newly discovered evidence is of such a material and controlling nature that it would probably change the outcome of the case and unless it was not by the exercise of ordinary diligence discoverable in time to be presented at the original hearing." Corrente v. Town of Coventry, 352 A.2d 654, 655 (1976). In its order of April 30, 1996, this Court previously determined that the providing of emergency ambulance services did not constitute a proprietary function and thus, the statutory cap on damages should apply to the municipality.
The motion "should not be granted unless the newly discovered evidence is of such a material and controlling nature that it would probably change the outcome of the case and unless it was not by the exercise of ordinary diligence discoverable in time to be presented at the original hearing." Corrente v. Town of Coventry, 116 R.I. 145, 147, 352 A.2d 654 (1976). Long relies on a pension and profit sharing document relating to the Atlantic pension plan to support his motion.
Id. A motion for a new trial on grounds of newly discovered evidence should not be granted unless it is material enough to probably change the outcome of the case and unless the evidence was not discoverable at the time of the original hearing by an exercise of ordinary diligence. Corrente v. Coventry, 116 R.I. 145, 147, 352 A.2d 654 (1976). As the defendants assert, the plaintiff had ample opportunity in this case to discover Resolution #506 as a matter of public record and introduce the same in his original action.