New Concept Physical Fitness Centers, Inc. v. Allen Advertising, Inc.

Deen, Chief Judge. Where the appellant has evidence in its possession at the time of trial and knows that it possesses such evidence and does not avail itself of it, the trial court does not err in denying a motion for a new trial based upon the purported discovery of newly discovered evidence unless the evidence would produce a different result. King v. Parson, 149 Ga. App. 28 (253 SE2d 426) (1979). Here, appellant brought up the letter immediately after the trial, which it had produced from its file, and attached it to the affidavit in support of its motion for a new trial. Appellant had the letter in its possession for over two years prior to trial. There is no question that the evidence was within the knowledge and possession of the appellant and the trial court did not err in denying the motion for a new trial. Judgment affirmed. Shulman and Carley, JJ., concur.