No. 88-554 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

FRANK HANZEL, d/b/a TOWN & COUNTRY 

ELECTRIC h BUILDING SUPPLIES, 

Plaintiff and Appellant, 

-vsBRIAN MARLER and U.S.A. INVESTMENTS, 

INC. , Defendant and Respondent. 

APPEAL FROM: District Court of the Tenth ~udicial District, 

In and for the County of Fergus, 

The Honorable Peter L. Rapkoch, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Torger S. Oaas, Lewistown, Montana 

For Respondent: 

J. David Penwell, Bozeman, Montana 

Submitted on Briefs: March 2, 1989 

Decided: June 8, 1989 
Mr. ~ustice ~illiam E. Hunt, Sr., delivered the opinion of 

the Court. 

Frank Hanzel, plaintiff, appeals from the denial of his 

motion for a new trial under 5 25-11-103, MCA, by the D~Strict Court of the Tenth ~udicial District, Fergus County. 

We affirm and remand for a determination of the amount of 

attorney fees. 

The issues raised on appeal are: 

1. Whether the District Court erred in denying plaintiff's motion for a new trial based on irregularities in the 

proceedings. 

2. Whether the District Court erred in failing to award 

Hanzel his attorney fees. 

Hanzel owns and operates an electrical contracting 

business in Lewistown, Montana. Defendant, Brian Marler, 

entered into an oral contract with Hanzel to perform electrical contracting work and other repairs on an apartment building owned by Marler in Lewistown. 

During the course of the contract, Marler paid Hanzel 

$21,000.00. Hanzel claimed that he was entitled to another 

$6,725.00 for additional labor and materials he supplied. 

Hanzel brought an action in the District Court on December 

10, 1987, to foreclose on a mechanic's lien that he filed on 

Brian Marler's property in Lewistown for the disputed 

$6,725.00. On the morning before trial, Marler made a motion 

in limine to exclude certain invoices from evidence based on 

Hanzel's failure to comply with Rule 34, M.R.Civ.P. The 

motion was granted. A bench trial commenced and judgment was 

entered in favor of Hanzel for $1,066.40 for a bill due and 
owing by Marler to Hanzel. Each party was ordered to pay its 

own attorney fees. 

On June 22, 1988, Hanzel filed a motion for a new trial 

pursuant to § 25-11-103, MCA, based on irregularities in the 

proceedings. The District Court failed to rule on Hanzel's 

motion within 45 days, and under Rule 59 (dl , M.R.Civ.P., the 

motion was deemed denied. Hanzel appeals. 

Granting or refusing of a motion for a new trial rests 

in the trial court's discretion. O'Brien v. Great Northern 

R.R. Co. (1966), 148 Mont. 429, 421 P.2d 710, cert. denied 

387 U.S. 920, 87 S.Ct. 2034, 18 L.Ed.2d 974; State v. 

Barovich (1963), 142 Mont. 191, 382 P.2d 917. The "motion 

must be viewed in the light most favorable to the party 

against whom the motion is directed." Dieruf v. Gollaher 

(1971), 156 Mont. 440, 446, 481 P.2d 322, 325. Should the 

court grant a new trial, "the error complained of must be an 

error materially affecting the substantial rights of the 

aggrieved party. I' Giles v. lint Valley Forest Products 

(1979), 179 Mont. 382, 388, 588 P.2d 535. Further, under 

Rule 61, M.R.Civ.P., the court must determine whether refusal 

to grant a motion for a new trial would appear inconsistent 

with substantial justice. 

At the hearing on motion for a new trial, Hanzel argued 

that the crux of his case depended on the introduction of the 

disputed invoices in order to prove the full extent of damages. He argued that excluding them materially affected the 

outcome of his award, and therefore, he should be granted a 

new trial. Marler's counsel stated, in response, that Hanzel 

failed to comply with the rules of discovery for request for 

production of documents under Rule 34, M.R.civ.P. At 

Hanzel ' s deposition, held the week before trial, Hanzel 

agreed that he would produce further invoices before trial. 

Marler stated that the invoices were not presented to him 
until the morning of trial which was untimely. He argued 

that this failure to comply with discovery was properly 

sanctioned by the ~istrict Court under Rule 37 (b) , 

M.R.Civ.P., by excluding the evidence from trial. 

Imposition of sanctions for failure to compl-y with the 

rules of discovery are regarded favorably. Owen v. F.A. 

Buttrey Co. (Mont. 1981), 627 P.2d 1233, 1236, 38 St.Rep. 

714, 716. his Court frowns on last-minute production of 

relevant documents especially when the matter could easily 

have been taken care of before trial. See G-K properties v. 

Redevelopment Agency of the City of San Jose (9th ~ir. 1978), 

577 F.2d 645. 

Just before trial, counsel met in chambers with the 

Judge. Marler contended that the only invoices received by 

him before the morning of trial had been in response to his 

request for production of documents provided to Hanzel on 

September 23, 1987. Hanzel's counsel, however, offered to 

prove that Marler did receive several more invoices. He 

claimed that several invoices were attached to his responses 

to Marler's interrogatories as exhibits, and he requested a 

continuance of the trial in order to call his secretary as a 

witness on the matter. The District Court denied Hanzel's 

request and trial proceeded as scheduled. 

This Court cannot determine from the record before us 

whether Hanzel complied with the rules of discovery. When 

Hanzel's motion for a new trial based on irregularities in 

the proceedings was made, the ~istrict Court had all the 

necessary evidence before it. It had the complete record 

(including the disputed invoices), the affidavits of Hanzel, 

his counsel and counsel's secretary, and the transcripts of 

the motion in limine, the trial and the motion for a new 

trial. 
The District Court's denial of a motion for a new trial 

will not be overturned absent a showing of manifest abuse of 

that discretion. ~iles, 588 P.2d at 538. -- See also Brothers 

v. Town of Virginia City (1976), 171 Mont. 352, 558 P.2d 464. 

We conclude that there was no abuse of discretion. 

The second issue raised on appeal is whether the 

District Court erred in failing to award Hanzel his attorney 

fees. 

Section 71-3-124, MCA, provides in part: 

In an action to foreclose any of the liens provided 

for by parts . . . 5 [construction liens] . . . of 

this chapter, the court must allow as costs the 

money paid for filing and recording the lien and a 

reasonable attorney's fee in the district and 

supreme courts, and such costs and attorney's fees 

must be allowed to each claimant whose lien is 

established . . . (Emphasis added.) 

The District Court Judgment of June 14, 1988, stated: 

It is therefore ordered that plaintiff have judgment for $1,066.40, for said lacier State Electric 

Supply Company bill, together with costs; but, 

because of the limited recovery, it is ordered that 

each party pay its own attorney's fees. 

At the trial there was conflicting evidence as to 

whether any money was due Hanzel. The ~istrict Court held 

that $1,066.40 was due Hanzel. Hanzel is, therefore, 

entitled to a reasonable attorney fee under 5 71-3-124, MCA. 

We remand for a determination of the amount of attorney fees. 

As we take this opportunity to admonish 

properly complied with Rule 23, 

M.R.App.P. Plaintiff's counsel failed to attach the District 

Court judgment and memorandum opinion in his appendix as 

required under Rule 23 (a) (6), M.R.App.P. Defendant's 

counsel's table of authorities was incomplete as required 

under Rule 23(b) and 23(a)(l), M.R.App.P. The table merely 

cited, "Montana Rules of Civil Procedure. I' Defendant 's 
counsel failed to properly list six authorities in his table 

although clearly cited throughout his brief. 

Affirmed and remanded for a determination of the amount 

of attorney fees.