No. 89-418 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

ELLIS A. BRUNNER and GLORIA A. 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 

a 
Justice Diane G. Barz delivered the Opinion of the Court. 

This appeal arises from denial of appellants1 motion for new 

hearing or, in the alternative, relief from judgment entered by 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 Court ruled respondents were not entitled to reimbursement 

of their equity upon rescission. We reversed and remanded for a 

determination of the value of respondents1 equity in the home. 

Subsequent to presentation of conflicting testimony at 

hearings held December 16 and 23, 1988, the District Court, 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 of new evidence. Appellants discovered documentation of 

their sale of the Missoula home to a third party approximately two 

years following the transaction from which this litigation arises. 

According to these documents, the selling price of the Missoula 
home in September, 1981, was roughly $13,000.00 less than the value 

found by the District Court. In its opinion and order dated June 

14, 1989, the District Court held appellants1 failed 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 

rehearing on the value of respondents1 equity in the Missoula 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 causes materially 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, have discovered and 

produced at the trial; 

Similarly, 

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: (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) : 

Rule 60(b) M.R.Civ.P. 

Clearly, the moving party must demonstrate due diligence in 

unearthing the newly discovered evidence before either relief from 

judgment or a new trial is proper. Schilke v. 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. Appellants1 evidence consists of documents prepared in 
the culmination of their sale of this home two years after their 

transaction with respondents. However, they sought to glean only 

one pertinent fact from that evidence: the selling price of the 

Missoula home. Not only could appellants have obtained this data 

from any of a number of other sources, copies of the closing 

documents were no doubt available through discovery. 

Appellantst arguments regarding the diligence with which they 

pursued this evidence are without merit and we therefore affirm the 

ruling of the District Court. We further award respondents their 

attorney's fees incurred in this appeal. 

We concur: /' 5" 

Justices