No. 89-418 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

ELLIS A. BRUNNER and GLORIAA. BRUNNER, Husband & Wife, STEVEN GROSS, LYLE GRENAGER and ALAN DAVIS, Plaintiffs and Respondents,-vsLEO R. LaCASSE and FRIEDA LaCASSE,Husband and HENRY LaCASSE,HELENE LaCASSE Defendants and Appellants, 'I

and Wife,

APPEAL FROM: District Court of the Fourth Judicial District, In and for the County of Missoula, The Honorable Ed McLean, Judge presiding.

COUNSEL OF RECORD: For Appellant: Clinton H. Kammerer; Kammerer Law Offices, Missoula, Montana For Respondent: Richard Buley; Tipp, Frizzell & Buley, Missoula, Montana

Filed: - - Submitted on Briefs: Dec. 7, 1989 Decided: January 16, 1990 aJustice Diane G. Barz delivered the Opinion of the Court.

This appeal arises from denial of appellants1motion for new hearing or, in thealternative,relief from judgmententeredby the District Court of the Fourth Judicial District, Missoula County,
on remand from an earlier appeal to this Court. We affirm. Respondents brought the underlying action seeking rescission of a real estate contract. Pursuant to the contract, appellants transferred undeveloped agricultural lots to respondents in exchange for cash and respondents' equity in a Missoula home. The District Courtruledrespondents were notentitledtoreimbursement of their equity upon rescission. We reversed and remanded for a determination of the value of respondents1equity in the home. Subsequent to presentation of conflicting testimony at hearings held December 16 and 23, 1988, the DistrictCourt, in its January 30, 1989 findings of fact, conclusions of law and order, found the value of the home at the time of transfer to be $86,900.00. Respondents filed a Notice of Entry of Judgment on March 10, 1989 and mailed a copy of the same to counsel for appellants. On March 23, 1989, appellants moved for a new hearing or relief from the judgment entered against them based on the discovery ofnew evidence. Appellants discovered documentationof their sale of theMissoula home to a third party approximately two years following the transaction fromwhich this litigationarises. According to these documents, the selling price of the Missoulahome in September,1981, was roughly $13,000.00 lessthanthevalue found by the District Court. 

### In its opinion and order dated June 14, 1989,the DistrictCourt held appellants1failed to adequately establish grounds for either a new trial or relief from judgment. We agree. Appellants' sole specification of error is the District Court's failure to find the newly discovered evidence warranted a rehearingonthe value of respondents1equity in theMissoula home. Section 25-11-102,MCA, provides as follows: The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved for any of the following causesmaterially affecting the substantial rights of such party: (4) newly discovered evidence material for the party making the application which he could not, with reasonable diligence, havediscovered and produced at the trial; Similarly, Onmotion 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: (2) newly discovered evidence which by due diligence could not have been discovered in time tomove for a new trial under Rule 59(b): Rule 60(b) M.R.Civ.P. Clearly, the moving party must demonstrate due diligence in unearthing thenewly discovered evidencebefore either relief from judgment or a new trial is proper. Schilkev. Bean (Mont. 1988), 755 P.2d 565, 568, 45 St.Rep. 930, 933. We find that appellants in the instant case were lax in uncovering the evidence in question. Appellants1evidence consists of documents prepared inthe culmination of their sale of this home two years after their transactionwith respondents. However, they sought to glean only
one pertinent fact from that evidence: the selling price of the Missoula home. Not only could appellantshave obtained this data from any of a number of other sources, copies of the closing documents were no doubt available through discovery. Appellantstarguments regardingthediligence with which they pursued thisevidencearewithout merit andwe therefore affirm the ruling of the District Court. We further award respondents their attorney's fees incurred in this appeal.

We concur: /' 

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Justices