                                No. 87-270
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1988


DAN J. DONOVAN, d/b/a D.J. DONOVAN
CONSTRUCTION,
                  Plaintiff and Appellant,


GERRY GRAFF,
                 Defendant and Respondent.



APPEAL FROM:     District Court of the Thirteenth Judicial District,
                 In and for the County of Yellowstone,
                 The Honorable Diane G. Barz, Judge presiding.
COUNSEL OF RECORD:
       For Appellant:
                 Dan J. Donovan, Pro Se, Denver Colorado
       For Respondent:
                 Jack Sands; Sands Law Firm, Billings, Montana



                                    Submitted on Briefs:   March 24, 1988
                                     Decided:   May 3, 1988

Filed: MAY   3 - 1988



                                   Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.

     Mr. Donovan brought this suit for damages arising out of
his contract to remodel Mr. Graff 's house. Mr. Graff coun-
terclaimed, alleging breach of contract. Mr. Donovan appeals
the judgment entered after a jury verdict in the District
Court for the Thirteenth Judicial District, Yellowstone
County.   The jury found that neither party had proven its
case by a preponderance of the evidence. We affirm.
     The issues are:
     1. Should a new trial have been granted for newly
discovered evidence?
     2. Is a new trial required because of prejudicial
surprise?
     Mr. Donovan agreed by written contract to remodel Mr.
Graff's Billings home. The contract provided that Mr. Graff
would pay for materials, permit costs, and subcontractors'
costs, along with labor costs of between $4,800 and $5,800,
plus $13.50 per hour for work additional to that called for
in the contract.
     After several weeks of work on the home, Mr. Donovan had
his crew walk off the job because of a bad check Mr. Graff
had given him. Mr. Donovan filed suit, alleging that he had
not been paid for additional work not listed in the contract;
that he had not been paid for materials, a permit, and equip-
ment rentals; and that he had suffered emotional distress
when his own checks were dishonored as a result of his reli-
ance on depositing Mr. Graff's check into his account. Mr.
Graff counterclaimed for breach of contract, requesting as
damages the cost of having the work on his house completed
and to some extent redone. The three-day trial was replete
with    evidence   and   innuendoes    by   each    side   of
unprofessionalism and half-truths by the other side. After
hearing the evidence, the jury returned its verdict that
"neither party proved their case by a preponderance of the
evidence."
     One set of exhibits presented at trial by Mr. Graff was
a collection of 23 photographs of the remodeling work. Mr.
Donovan took the opportunity at trial to present rebuttal
testimony to Mr. Graff's witnesses' testimony about the
photographs.   He did not object to their admission into
evidence. However, after the verdict was rendered, he moved
for a new trial, arguing that the admission of the photo-
graphs was unfair surprise. He also argued that when he was
able to reflect further upon the photographs, he found
inconsistancies which constituted newly discovered evidence
justifying a new trial. The District Court denied the motion
for new trial, and Mr. Donovan appeals.
                              I
     Should a new trial have been granted for newly discov-
ered evidence?
     Section 25-11-102, MCA, provides that a new trial may be
granted for several reasons which materially affect the
substantial rights of a party. One of the reasons, set out
in subsection (4), is newly discovered evidence which is
material to the party applying for new trial and which that
party could not, with reasonable diligence, have discovered
and produced at trial. A party moving for a new trial on the
basis of newly discovered evidence must show that: 1 ) this
evidence came to the party's knowledge since the trial;
2) it was not through want of diligence that the evidence
was not discovered earlier; 3) the evidence is so material
that it would probably produ-ce a different result upon retri-
al;   4) the evidence is not merely cumulative;        5) the
witness whose evidence is newly discovered has signed an
affidavit which supports the application; and          6) the
evidence does not tend only to impeach the character or
credit of a witness. Kerrigan v. Kerrigan (1943), 115 Mont.
136, 144-45, 139 P.2d 533, 535.
     Mr. Donovan argues that after the trial he noticed
certain discrepancies in Mr. Graff's witnesses' testimony
about several of the photographs of Mr. Graff 's house. Mr.
Donovan states that although these photographs were listed as
proposed exhibits in the pretrial order, the attorney for Mr.
Graff failed to produce them for Mr. Donovan's inspection
until the morning of trial.     Mr. Donovan asserts that his
awareness of the contradictions in Mr. Graff's witnesses'
testimony constitutes newly discovered evidence.
     Mr. Graff points out that, although Mr. Donovan knew for
several months before trial that photographs of the house
would be offered into evidence, he never filed a discovery
request to see the photographs. We conclude that Mr. Donovan
has failed to establish element (2) under the above test for
newly discovered evidence. We also conclude that Mr. Donovan
has not shown that the evidence is so material that it wou1.d
probably produce a different result upon retrial. We there-
fore hold that the District Court did not err in denying the
motion for a new trial on this ground.
                             I1
     Is a new trial required because of prejudicial surprise?
     Section 25-11-102, MCA, provides, at subsection (3),
that a new trial may be granted if there has been "accident
or surprise which ordinary prudence could not have guarded
against" and which materially affected the substantial rights
of the moving party. For a new trial under this subsection,
the moving party must show that 1) the moving party was
actually surprised; 2) the facts causing the surprise had a
material bearing on the case; 3) the verdict or decision
resulted mainly from these facts; 4) the surprise did not
result from the moving party's inattention or negligence; 5)
the moving party acted promptly and claimed relief at the
earliest opportunity; 6) the moving party used every means
reasonably available at the time of the surprise to remedy
it; and 7) the result of a new trial without the surprise
would probably be different.      Ewing v. Esterholt (Mont.
1984), 684 P.2d 1053, 1057, 41 St.Rep. 1095, 1098.
     Mr. Donovan argues that the admission of the photographs
of the house into evidence constituted prejudicial surprise.
Similarly to the first issue, Mr. Donovan's failure to re-
quest production of these photographs through the discovery
process is important.     We conclude that Mr. Donovan has
failed to prove element (4) above, that the surprise did not
result from his own inattention or negligence. After review-
ing the transcript, we further conclude that Mr. Donovan has
failed to prove that the verdict resulted mainly from admis-
sion of these photographs.
     Affirmed.




We concur:




Justices
