FRANK HANZEL, d/b/a Town & Country Electric & Building Supplies, Plaintiff and Appellant, v. BRIAN MARLER and U.S.A. Investments, Inc., Defendant and Respondent.
No. 88-554.
SUPREME COURT OF MONTANA
Decided June 8, 1989.
Submitted on Briefs March 2, 1989.
774 P.2d 426
J. David Penwell, Bozeman, for defendant and respondent.
Frank Hanzel, plaintiff, appeals from the denial of his motion for a new trial under
The issues raised on appeal are:
- Whether the District Court erred in denying plaintiff‘s motion for a new trial based on irregularitiеs in the proceedings.
- Whether the District Court erred in failing to award Hanzel his attorney fees.
Hanzel owns and operаtes 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 аnother $6,725.00 for additional labor and materials he supplied. Hanzel brought an action in the District Court on December 10, 1987, tо 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 bеfore trial, Marler made a motion in limine to exclude certain invoices from evidence based on Hanzel‘s failure to comply with
On June 22, 1988, Hanzel filed a motion for a new trial pursuant to
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 favоrable 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
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 thаt 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
Imposition of sanсtions for failure to comply with the rules of discovery are regarded favorably. Owen v. F.A. Buttrey Co. (Mont. 1981), [___Mont.___,] 627 P.2d 1233, 1236, 38 St.Rep. 714, 716. This Court frowns on last-minute рroduction of relevant documents especially when the matter could easily have been taken carе of before trial. See G-K Properties v. Redevelopment Agency of the City of San Jose (9th Cir. 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 beеn 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 sevеral invoices were attached to his responses to Marler‘s interrogatories as exhibits, and he requested a сontinuance of the trial in order to call his secretary as a witness on the matter. The District Court denied Hanzel‘s requеst 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 District Court had all the necessary evidence before it. It had the complete record (including the disputеd invoices), the affidavits of Hanzel, his counsel and counsel‘s secretary,
The District Court‘s denial of a motion for a new trial will not be overturned absent a showing of mаnifest abuse of that discretion. Giles, 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.
“In an action to foreclose any of the liens provided for by parts . . . 5 [construction liеns] . . . 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 Glacier Stаte Electric Supply Company bill, together with costs; but, because of the limited recovery, it is ordered that eaсh party pay its own attorney‘s fees.”
At the trial there was conflicting evidence as to whether any money was due Hаnzel. The District Court held that $1,066.40 was due Hanzel. Hanzel is, therefore, entitled to a reasonable attorney fee under
As a final note, we take this opportunity to admоnish counsel for their breifs since neither properly complied with
Affirmed and remanded for a determination of the amount of attorney fees.
MR. JUSTICES HARRISON, GULBRANDSON, SHEEHY and WEBER concur.