                               No. 8 8 - 5 5 4
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                    1989



FRANK HANZEL, d/b/a TOWN & COUNTRY
ELECTRIC h BUILDING SUPPLIES,
                Plaintiff and Appellant,
       -vs-

BRIAN MARLER and U.S.A. INVESTMENTS,
INC. ,
              Defendant and Respondent.



APPEAL FROM:    District Court of the Tenth ~udicialDistrict,
                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, 1 9 8 9
                                       Decided:   June 8, 1989
Mr. ~ustice~ i l l i a mE. 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 ~ S -
trict 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 plain-
tiff'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 electri-
cal contracting work and other repairs on an apartment build-
ing 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 damag-
es.   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 ~ i r .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. ~ i l e s ,588 P.2d at 538. - - Brothers
                                             See also
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 judg-
     ment 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 ~istrictCourt 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.
