DA 16-0649

IN THE SUPREME COURT OF THE STATE OF MONTANA

2017 MT 181

KEVIN DeTIENNE, individually and on behalf of

The VIBEKE DeTIENNE TRUST, AS TRUSTEE,

THE TRAIN STATION, LLC, a Montana Limited

Liability Company, and THE MONEY TRAIN,

LLC, a Montana Limited Liability Company,

 Plaintiffs and Appellees,

 v.

BRYAN SANDROCK, GG&ME, LLC, a Montana

Limited Liability Company, and DRAES, INC., 

a Montana Close Corporation,

 Defendants and Appellants.

APPEAL FROM: District Court of the First Judicial District,

In and For the County of Lewis And Clark, Cause No. CDV-2009-1105

Honorable Kathy Seeley, Presiding Judge

COUNSEL OF RECORD:

For Appellants:

John C. Doubek, Keif Storrar, Doubek, Pyfer & Fox LLP,

Helena, Montana

Perry J. Schneider, Milodragovich, Dale & Steinbrenner, P.C.,

Missoula, Montana

For Appellees:

Stefan T. Wall, Wall, McLean & Gallagher, PLLC, Helena, Montana

Submitted on Briefs: May 24, 2017

 Decided: July 25, 2017

Filed:

__________________________________________

Clerk

07/25/2017

Case Number: DA 16-0649
2

Justice Michael E Wheat delivered the Opinion of the Court.

¶1 This case arises from a 2007 real estate transaction in Helena, Montana. The 

parties to this transaction have litigated the transaction and other related issues in 

multiple courts since 2008. In the case before us, Sandrock appeals the order of the First 

Judicial District Court, Lewis and Clark County, denying his motion to set aside a default 

and a subsequent default judgment entered against him. In his motions to set aside, 

Sandrock claims the default and default judgment were caused by his counsel’s neglectful 

representation and the District Court abused its discretion in denying his motions to set 

aside the default. He also appeals the District Court’s Judgment and Judicial Decree 

(Decree), asserting that the Decree is replete with errors, including the court’s failure to 

provide a reasonable basis for its computation of damages. We affirm in part and remand 

in part.

ISSUES

¶2 A restatement of the issues on appeal is:

¶3 Did the District Court slightly abused its discretion when it denied Sandrock’s 

motion to set aside a default and a default judgment?

¶4 Did the District Court err in its calculation of damages? 

FACTUAL AND PROCEDURAL BACKGROUND

¶5 In January 2007, Kevin DeTienne and his mother, Vibeke DeTienne, established a 

limited liability company, The Train Station. The original Articles of Organization 

indicated Ms. DeTienne was the sole “member” of The Train Station. The DeTiennes 
3

created The Train Station to purchase real property located at 1110 West Custer Avenue, 

Helena, Montana, on which to establish a casino that Kevin would operate through his 

company, The Money Train. When financing was delayed the DeTiennes approached 

Bryan Sandrock, a local business man and acquaintance of Kevin, for a short-term loan. 

As part of the agreement to provide funding, Sandrock requested and was granted 50% 

membership in The Train Station.1 In September 2007, Ms. DeTienne created a Trust 

and transferred her membership in The Train Station to the Trust. Ms. DeTienne died in 

December 2007 and Kevin DeTienne became the Trustee of the Trust. 

¶6 In February 2008, Kevin and two of his siblings initiated probate proceedings in 

the Fifteenth Judicial District Court, Sheridan County. In the Matter of the Estate of 

Vibeke B. DeTienne, DP-46-2008-0005076-FT (Feb. 27, 2008) (Cause No. 08-5076). 

Ultimately, Kevin was appointed personal representative of Ms. DeTienne’s estate. In 

June 2008, Kevin DeTienne and Sandrock entered into a “substitution of member” 

agreement putting “Vibeke DeTienne Trust, Kevin DeTienne, Trustee, in the place and 

stead of Vibeke DeTienne, Member.” Also, in June 2008, after the building on 1110 

West Custer was completed, The Train Station entered into a lease agreement with The 

Money Train under which The Money Train was obligated to make monthly rental 

payments to The Train Station for the property.

 

1 Kevin DeTienne alleges that at this time, Sandrock orally agreed that The Train Station 

would hold the lease for a casino he was developing, The Loose Caboose. Subsequently, no 

written agreement was executed and The Loose Caboose was not included as part of The Train 

Station.
4

¶7 Following a dispute with Sandrock, in August 2009, Kevin began depositing his 

monthly lease payment into the Trust bank account rather than to The Train Station bank 

account. In November 2009, Sandrock, through original counsel, initiated eviction

proceedings against Kevin in the First Judicial District Court, Lewis and Clark County. 

Sandrock v. DeTienne, DV-25-2009-0001105-RP (Nov. 30, 2009) (Judge Kathy Seeley 

presiding) (Cause No. 09-1105). Sandrock claimed Kevin breached the lease agreement 

the parties had entered into by failing to pay rent. 

¶8 In January 2010, Judge Seeley entered a temporary restraining order and later a 

preliminary injunction prohibiting DeTienne from entering the subject property pending 

a decision on the merits of the case. DeTienne appealed this ruling and, in November

2010, we affirmed and returned the matter to the District Court for a ruling on the 

merits. Sandrock v. DeTienne, 2010 MT 237, 358 Mont. 175, 243 P.3d 1123. This 

eviction proceeding lay dormant from November 2010—when this Court entered its 

Opinion— until May 2013, when Judge Seeley ordered a status report. 

¶9 In February 2010, Sandrock, while asserting that he was the sole member and only 

interest holder in the assets of The Train Station, transferred the real property by deed to 

GG&ME, a Montana limited liability company of which he is the managing member. 

GG&ME then leased the property to Drae’s Station Casino, a corporation formed on 

February 1, 2010, and whose sole shareholder is Deryl Rae Sandrock, Sandrock’s 

spouse. 

¶10 In March 2010, Kevin DeTienne initiated a declaratory judgment action against 

Sandrock, also in the First Judicial District Court, Lewis and Clark County. DeTienne v. 
5

Sandrock, DV-25-2010-0000262-DK (Mar. 15, 2010) (Judge Jeffrey Sherlock presiding)

(Cause No. 10-262). Kevin sought a declaratory judgment that his mother’s Trust was a 

member of The Train Station and Sandrock’s transfer of the property was unlawful as it 

was done without the consent of the other member, i.e. the Trust. In July 2010, 

DeTienne as Trustee of his mother’s Trust moved for partial summary judgment. 

Sandrock opposed the motion. Judge Sherlock conducted a hearing on summary 

judgment in December 2010 and, in March 2011, the District Court ordered the case, 

including the pending motion for partial summary judgment, transferred to Sheridan 

County and consolidated with the probate proceeding, Cause No. 08-5076. Sandrock’s 

original attorney represented him from the initiation of the declaratory judgment 

proceeding until the matter was transferred to Sheridan County.

¶11 As the eviction and the declaratory judgment cases were advancing, so was the 

2008 Sheridan County probate action and, in January 2011, Sandrock, by original 

counsel, filed a claim against Ms. DeTienne’s estate. In April 2012, after Sandrock’s 

original attorney pursued other opportunities, Sandrock retained new counsel2to 

represent him in the Sheridan County proceeding. In November 2012, the Sheridan 

County District Court granted DeTienne’s motion for partial summary judgment, issuing 

an express declaratory judgment that Ms. DeTienne’s Trust was a member of The Train 

Station and had been since the June 2008 agreement between Kevin DeTienne and 

Sandrock. In December 2014, the Sheridan County District Court transferred the 

 

2 This newly-retained attorney represented Sandrock in all three proceedings until June 

2016 when Sandrock fired him and retained current counsel.
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consolidated probate/declaratory action proceeding to Lewis and Clark County for 

consolidation with Cause No. 09-1105, the eviction proceeding.

¶12 In summary, Cause No. 08-5076 was the probate proceeding filed in Sheridan 

County by Kevin DeTienne and his siblings. Cause No. 09-1105 is the eviction 

proceeding Sandrock filed against DeTienne in Lewis and Clark County. Cause No. 

10-262 was the declaratory judgment action filed in Lewis and Clark County by 

DeTienne against Sandrock. The declaratory judgment action was transferred to and 

consolidated with Sheridan County probate Cause No. 08-5076 in March 2011. In 

December 2014, the Sheridan County consolidated probate/declaratory judgment action 

was transferred to and consolidated with the Lewis and Clark County eviction 

proceeding, Cause No. 09-1105. 

¶13 The appeal currently before us arose in the 2009 eviction proceeding, Cause No. 

09-1105. Following the above-referenced hiatus from November 2010 until May 2013, 

the District Court ordered the parties to provide a status report. At that time, Sandrock’s 

new counsel provided the status report on behalf of Sandrock. A scheduling order was 

issued in June 2013 and the parties began preparing for trial. In April 2014, DeTienne 

served discovery requests and admissions on Sandrock. Sandrock, through counsel, 

responded in May 2014. In September 2014, asserting that Sandrock’s responses were 

“wholly inadequate,” DeTienne moved for sanctions or, in the alternative, for a motion to 

compel. Sandrock opposed the motion.

¶14 In February 2015, while DeTienne’s motion for sanctions was pending, DeTienne 

moved to realign the parties designating himself and The Train Station as plaintiffs and 
7

Sandrock, GG&ME, and Drae’s as defendants. Sandrock objected but on August 5, 

2015, Judge Seeley granted the motion to realign and allowed DeTienne to file a second 

amended complaint. The court instructed Sandrock to respond to DeTienne’s complaint 

within thirty days. Sandrock failed to answer the complaint within the designated time. 

¶15 On September 11, 2015, at DeTienne’s request, the clerk of the District Court 

entered Sandrock’s default. DeTienne then requested a hearing to obtain a default 

judgment and to establish damages. The hearing was conducted on November 30, 2015. 

Minutes before the hearing was to commence, Sandrock, through counsel, filed a motion 

to set aside default judgment based upon an alleged fraud upon the court committed by 

DeTienne. Sandrock’s counsel also submitted his proposed answer to DeTienne’s 

complaint and admitted to the court that he had given the matter inadequate attention. 

As DeTienne’s expert witness was present, the District Court allowed her to testify and 

informed the parties that a future damages hearing would be held in the event 

Sandrock’s motion to set aside was denied. The witness, a certified public accountant 

with the WIPFLI accounting firm, testified that she had prepared, on behalf of DeTienne 

and The Money Train, a Lost Profits Analysis Report pertaining to The Train Station, 

The Money Train, and Sandrock’s casino company, The Loose Caboose. The Report 

purportedly sets forth the money Kevin would have made for The Train Station and The 

Money Train had he not been wrongfully evicted in 2009. The WIPFLI Report was 

admitted into evidence at the hearing and became the foundation for the court’s damages 

award.
8

¶16 Following the November 2015 hearing, the court instructed the parties to brief the 

issues raised in the motion to set aside default judgment. On March 1, 2016, after 

reviewing the parties’ legal arguments, the District Court denied Sandrock’s motion. The 

court held that under the “good cause” standard set forth in M. R. Civ. P. 55(c) (Rule 

55(c)), counsel’s claim that he had not paid sufficient attention to the matter failed to 

establish good cause to set aside the default. The court further held that Sandrock’s brief 

did not support his argument of a “fraud” upon the court and that M. R. Civ. P. 60 (Rule 

60), did not apply because a default judgment had not yet been entered against Sandrock. 

¶17 In April 2016, the court conducted a damages hearing. In June 2016, Sandrock 

obtained current counsel, and again moved for relief from default judgment relying upon 

Rule 60(b)(1), (5) and (6)3. Sandrock claimed that the default judgment should be set 

aside based upon the gross negligence of his former attorney. Sandrock attached a 

lengthy affidavit to his motion and supporting brief setting forth allegations against his 

former attorney and against DeTienne. In addition, he challenged the computation and 

amount of damages that had been imposed. 

 

3 Rule 60(b) provides, in relevant part: 

Grounds for Relief from a Final Judgment, Order, or Proceeding. On motion and 

just terms, the court may relieve a party or its legal representative from a final 

judgment, order, or proceeding for the following reasons:

(1) mistake, inadvertence, surprise, or excusable neglect;

. . .

(5) the judgment has been satisfied, released, or discharged; it is based on 

an earlier judgment that has been reversed or vacated; or applying it prospectively 

is no longer equitable; or

(6) any other reason that justifies relief.
9

¶18 The District Court observed in its August 2016 order that Sandrock, with new 

counsel, was “attempting to rectify the consequences of what [he] perceive[s] to be 

negligence by [his] former counsel.” The court denied the motion holding, as it had in its 

March 2016 order, that no default judgment had yet been entered in this case, therefore 

Rule 60(b) did not apply. In the same order, the court also struck Sandrock’s affidavit 

interpreting the focus of the affidavit to be on aspects of “damages and the parties’ 

working relationship.” The court stated the affidavit was untimely based upon a prior 

order of the court precluding further evidence on damages. It also noted that the affidavit 

contained significant hearsay with no opportunity for cross-examination. While 

expressly mindful of Sandrock’s new counsel and the problems with previous counsel, 

the court determined that, after seven years, it was “obligated to move [the] litigation 

toward a conclusion” and granting Sandrock’s motion would “put the case in a 

procedural posture very near to where it began.”

¶19 On September 28, 2016, the District Court issued its Judgment and Judicial 

Decree. The court ordered that: (1) Sandrock was disassociated and expelled from The 

Train Station; (2) the previous transfer of the property to GG&ME via quitclaim by 

Sandrock was “void and of no force and effect”; and (3) the leasehold to Drae’s was void 

and the lessees had thirty days to vacate the premises. The court awarded compensatory 

damages to DeTienne in the amount of $2,083,171 plus specified interest, punitive 

damages of $150,000, as well as costs and attorney fees.

¶20 Sandrock, through counsel, promptly moved for relief from the judgment relying 

on Rule 60(b)(1) and (6). Sandrock’s exclusive argument supporting setting aside the 
10

default judgment was his previous counsel’s gross negligence. Sandrock further 

conducted an analysis of the damages award, identifying specific errors in the calculation 

that he alleged render the damages award inaccurate and in need of recalculation and 

clarification. On December 6, 2016, DeTienne filed his opposition to Sandrock’s motion 

for relief and reconsideration. DeTienne filed Notice of Entry of Judgment on December 

14, 2016. The court did not respond to Sandrock’s motion and after sixty days, it was 

deemed denied. 

¶21 Sandrock appeals the District Court’s denial of his motion to set aside default 

judgment and its calculation of damages. We affirm in part and remand in part. 

STANDARD OF REVIEW

¶22 We review a district court’s denial of a motion to set aside a default or a default 

judgment for a slight abuse of discretion. This standard requires the reviewing court to 

weigh “the conflicting concerns of respecting the trial court’s sound discretion while 

recognizing the policy favoring trial on the merits.” Lords v. Newman, 212 Mont. 359, 

364, 688 P.2d 290, 293 (1984). “It is clear that the issue of abuse of discretion must be 

decided on a case-by-case basis.” Lords, 212 Mont. at 366, 688 P.2d at 294. See also 

Paxson v. Rice, 217 Mont. 521, 525, 706 P.2d 123, 125.

¶23 When reviewing an award of damages, the standard of review is whether the 

district court abused its discretion. Czajkowski v. Meyers, 2007 MT 292, ¶ 13, 339 Mont. 

503, 172 P.3d 94. An abuse of discretion occurs when a district court acts arbitrarily, 

without employment of conscientious judgment, or exceeds the bounds of reason. In re 

E.Z.C., 2013 MT 123, ¶ 19, 370 Mont. 116, 300 P.3d 1174. 
11

¶24 A district court’s determination of damages is a factual finding that must be 

upheld if it is supported by substantial evidence. We will not overturn a district court’s 

award of damages unless it is clearly erroneous. A district court’s factual findings are 

clearly erroneous if they are not supported by substantial evidence, if the court 

misapprehended the effect of the evidence, or if a review of the record leaves this Court 

with a definite and firm conviction that a mistake was made. When determining whether 

substantial evidence supports the district court’s findings, we will review the evidence in 

the light most favorable to the prevailing party. Vintage Constr., Inc. v. Feighner, 2017 

MT 109, ¶ 14, 387 Mont. 354, 394 P.3d 179.

DISCUSSION

¶25 Did the District Court slightly abuse its discretion when it denied Sandrock’s 

motion to set aside a default and a default judgment?

¶26 Sandrock asserts on appeal that the District Court abused its discretion in denying 

his motions to set aside the default and the subsequent default judgment as these motions 

illustrated his former counsel’s total neglect of his duties and abandonment of his clients. 

Sandrock claims that the defaults were the result of the “utterly horrible and gross 

negligence” on the part of his then-attorney, and the District Court should have set the 

defaults aside based upon counsel’s actions. He further contends that the District Court 

improperly struck his affidavit. However, as he fails to present a legal argument 

supporting his claim, we decline to address it. M. R. App. P. 12(1)(g). Consequently, we 

affirm the District Court’s decision striking Sandrock’s affidavit. 
12

¶27 DeTienne counters that the District Court correctly reviewed, legally analyzed, 

and denied Sandrock’s motions. DeTienne asserts that Sandrock’s sole evidence 

supporting his arguments and claims against counsel were set forth in the affidavit that 

the District Court struck and did not enter into the record. DeTienne further claims 

Sandrock failed to sufficiently argue or demonstrate the presence of the necessary 

elements for overturning a default judgment.

¶28 As noted above, Sandrock, through counsel, filed three motions with the goal of 

having the default and default judgment against him set aside. As the third of these 

motions is most significant, we will not address the earlier motions in great detail. 

Motion 1 was filed by Sandrock’s previous attorney, and Motion 2 was filed by current 

counsel seeking to recover some lost ground. We hold, however, that these previous 

motions were correctly denied as Motion 1 did not satisfy the standard for relief under the 

applicable rule for setting aside a default, Rule 55(c). Additionally, both motions sought 

relief under the rule for setting aside a default judgment, Rule 60(b), which was not 

applicable. As noted by the District Court in both orders, Rule 60 does not apply because 

no default judgment had been entered prior to the dates the motions were filed. We now 

address the District Court’s deemed denial of Sandrock’s Rule 60(b)(1) post-judgment 

motion for relief and reconsideration of the judgment.

¶29 As stated above, Rule 60(b)(1) provides that a court may set aside a default 

judgment if the defendant shows that the judgment resulted from “mistake, inadvertence, 

surprise, or excusable neglect.” See also M. R. Civ. P. 55(c) (“The court may set aside an 

entry of default for good cause, and it may set aside a default judgment under Rule 
13

60(b).”). When reviewing a district court’s ruling on a motion to set aside a default 

judgment under Rule 60(b)(1), we apply a conjunctive four-part test: (1) did the 

defaulting party proceed with diligence; (2) was the defaulting party’s neglect excusable; 

(3) did the defaulting party have a meritorious defense to the claim; and (4) if permitted 

to stand, would the judgment affect the defaulting party injuriously. Mont. Prof’l Sports, 

LLC v. Nat’l Indoor Football League, LLC, 2008 MT 98, ¶ 35, 342 Mont. 292, 180 P.3d 

1142. 

¶30 It is well-established that a judgment by default is not favored; rather, a trial on the 

merits is preferred. Worstell v. Devine, 135 Mont. 1, 4, 335 P.2d 305, 306 (1959). This 

is reflected in the applicable standard of review. We review a district court’s ruling to 

grant a motion to set aside a default for manifest abuse of discretion. We review a 

district court’s decision to deny a motion to set aside a default for a slight abuse of 

discretion. Lords, 212 Mont. at 364, 688 P.2d at 293.

¶31 It is undisputed that Sandrock’s current counsel promptly moved for review and 

reconsideration of the judgment in this case arguing that the default judgment should be 

set aside. As a result, the first prong of the test is satisfied. We next consider whether 

Sandrock and his former attorney’s neglect are excusable. We have decided numerous 

cases involving attorney neglect, default and default judgment, and whether counsel’s 

neglect was excusable, and whether counsel’s neglect should be attributed to his client. 

See, e.g., First State Bank v. Larsen, 72 Mont. 400, 233 P. 60 (1925); Worstell; Lords;

Graham v. Mack, 216 Mont. 165, 699 P.2d 590 (1984); Paxson; Twenty-Seventh Street 
14

v. Johnson, 220 Mont. 469, 716 P.2d 210 (1986); In re Marriage of Castor, 249 Mont. 

495, 817 P.2d 665 (1991).

¶32 In First State Bank, the Bank appealed from a judgment against it and this Court 

reversed and remanded for a new trial. Neither Larsen nor his counsel appeared at the 

subsequent trial and the Bank obtained a default judgment. In seeking to have the 

judgment set aside, Larsen accused his attorney of neglect through failure to adequately 

and appropriately communicate with him. While noting counsel’s failures, the Court also 

noted the multiple actions in the case taken by Larsen that constituted neglect. The Court 

stated, “[t]he neglect of an attorney is attributable to, and is the neglect of, his client, and 

the client can only be relieved from the consequence of the attorney’s neglect on a 

showing which would excuse the client under like circumstances.” First State Bank, 72 

Mont. at 405, 233 P. at 962. After noting the client’s negligence, the Court attributed the 

lawyer’s neglect to his client and held the district court did not abuse its discretion in 

denying the motion to set aside the judgment.

¶33 In Worstell, the Worstells sued Devine in a contract dispute. Devine was served 

with the complaint on May 17, 1956, but did not deliver it to her attorney until May 21, 

1956. Counsel was traveling at the time the complaint was delivered to his office and 

upon his return—believing his client was served on May 21—failed to notice the actual 

date of service. As a result, he miscalculated the date the answer was due, failed to file a 

timely answer, and a default and default judgment was entered against Devine. Worstell, 

135 Mont. at 2-3, 335 P.2d at 305-06. Counsel responded to the default judgment with a 

prompt motion to set aside, an affidavit explaining the circumstances, and the proposed 
15

answer and counterclaim. The district court denied the motion to set aside the default 

judgment. Devine appealed. Worstell, 135 Mont. at 3, 335 P.2d at 306. Relying on an 

early version of Rule 60(b)(1) and stating it “has been hesitant to impute the neglect of an 

attorney to his client,” the Court held that counsel’s neglect was excusable and appeared 

to be “an honest mistake.” Worstell, 135 Mont. at 5-6, 335 P.2d at 307. The Court found 

significant Devine’s counsel’s prompt and diligent action in moving to set aside the 

judgment and his showing of a meritorious defense. Worstell, 135 Mont. at 6, 335 P.2d 

at 307. 

¶34 In Lords, the Court again vacated a default and default judgment and remanded the 

case to the district court for further proceedings. Lords, 212 Mont. at 369, 688 P.2d at 

296. In that case, a father, mother, and daughter were named in a legal proceeding. Only 

Father received service. When Daughter learned that Father had been served, she took 

the complaint to an attorney she had previously consulted on an unrelated matter. Lords, 

212 Mont. at 361, 688 P.2d at 291. She asked counsel to assist her Father in the matter. 

Without further consultation, the attorney appeared in court, claiming to represent all 

three parties. He moved to dismiss the case or change the venue. Unbeknownst to the 

defendants, within days, the attorney ceased practicing law and moved out of state 

leaving no forwarding address. The District Court granted the change of venue but 

neither the court nor the plaintiffs could locate defendants’ counsel. Shortly thereafter, 

default was entered against all three defendants. Lords, 212 Mont. at 361, 688 P.2d at 

292. Defendants learned through their insurance provider—several months after the 

fact—that the attorney had entered an appearance on their behalf and that a default had 
16

been entered against them. Lords, 212 Mont. at 362, 688 P.2d at 292. The Court 

observed: 

[Counsel’s] actions do not constitute mere bungling of his duties or 

ineffective representation. [Counsel] totally abandoned his clients and 

disappeared from sight. To add insult to injury, before disappearing, 

[counsel] made a general appearance on behalf of the clients who had 

neither been served with process nor authorized him to so act. 

The Court found counsel’s behavior unconscionable and good cause for setting aside the 

default. Lords, 212 Mont. at 367-68, 688 P.2d at 295. 

¶35 Sandrock relies heavily on Lords, arguing that his former counsel abandoned him 

as well. He asserts six “major failures” on the part of his former counsel, including that 

he: (1) was “essentially absent or ignored the proceedings” in the Sheridan County 

District Court probate matter, Cause No. 08-5076, causing Sandrock to be sanctioned for 

failing to respond to discovery orders; (2) provided inadequate responses to discovery 

motions and failed to adequately participate in litigation of the case before us on appeal, 

Cause No. 09-1105; (3) disregarded the District Court’s order and failed to answer 

DeTienne’s Second Amended Complaint in Cause No. 09-1105; (4) failed to promptly 

move to set aside the default resulting from failure to answer DeTienne’s Second 

Amended Complaint; (5) ignored Sandrock’s demands; and (6) failed to prepare for the 

damages hearing in Cause No. 09-1105.

¶36 The record does not support a finding that counsel abandoned Sandrock in the 

Sheridan County probate proceeding. While counsel’s representation could be viewed as 

inadequate and ineffective, it is a far cry from the unauthorized representation followed 

by total abandonment experienced in Lords. As noted above, the record reveals that 
17

counsel began representing Sandrock in the 2008 Sheridan County probate/declaratory 

judgment action, Cause No. 08-5076, in April 2012. Just weeks after taking the case over 

from previous counsel, counsel filed a timely five-page legal response—with appropriate 

and numerous attachments—to DeTienne’s motion for partial summary judgment. He 

subsequently participated in the hearing on summary judgment, and requested an 

extension to respond to DeTienne’s motion for discovery sanctions. He filed a response 

within the time granted by the District Court. He further moved for a hearing on the 

request for sanctions and filed a notice indicating discovery delivery was substantially 

complete with additional material to be submitted “expeditiously.” Subsequently, he 

filed an answer brief in response to various motions filed by DeTienne just days before 

the matter was transferred to Lewis and Clark County for consolidation with Cause No.

09-1105. For these reasons, we cannot find, under Lords, that his representation 

constituted a total abandonment of Sandrock in the Sheridan County proceeding.

¶37 Sandrock further asserts claims of his former counsel’s inadequate participation 

and preparation in the 2009 eviction proceeding, Cause No. 09-1105. However, the 

record reveals that counsel actively represented Sandrock in the eviction proceeding from 

May 2013 until May 2016. While counsel failed to submit a timely answer to 

DeTienne’s complaint and to promptly move to have the default set aside, these actions 

do not constitute excusable neglect. 

¶38 As we noted in Paxson, procrastination by counsel resulting in untimely responses 

“is a type of neglect which is properly attributable to a client.” Paxson, 217 Mont. at 

525, 706 P.2d at 126. In Paxson, the Paxsons sued contractor Rice for breach of contract, 
18

breach of the implied warranty of habitability, negligent construction, and bad faith. 

Rice’s attorney filed a motion to dismiss the complaint that was subsequently denied. 

Despite repeated efforts by Paxsons’ counsel to prompt opposing counsel to file an 

answer to the complaint, Rice failed to file an answer. A default was issued and eight 

days later, Rice’s counsel moved to have the default set aside. He asserted that he was 

leaving his law firm during this time and his inattention was excusable neglect and a 

mistake. Paxson, 217 Mont. at 523, 706 P.2d at 124. The district court disagreed and we 

held the court did not abuse its discretion in ruling that counsel’s actions did not 

constitute “excusable neglect.” Paxson, 217 Mont. at 526, 706 P.2d at 126. 

¶39 Similarly, in Marriage of Castor, neither Castor, nor his counsel, appeared at a 

hearing requested by Castor seeking modification of his spousal maintenance payments 

to his ex-wife. While counsel received written notice of a continuation of the hearing, he 

failed to note the rescheduled hearing date; consequently, neither he nor his client 

attended. Castor, 249 Mont. at 498, 817 P.2d at 666. In arguing that the default should 

be set aside under Rule 60(b)(1) or (6), counsel claimed it was a “human” mistake and 

excusable. Castor, 249 Mont. at 499, 817 P.2d at 667. Relying in part on Paxson, this 

Court held the district court did not abuse its discretion in refusing to set aside the 

default. Castor, 249 Mont. at 500, 817 P.2d at 668. 

¶40 We acknowledge that Sandrock’s former counsel admitted inattentiveness to the 

case. It also appears he did not respond to his client’s demands as readily as Sandrock 

desired. However, this does not constitute excusable neglect nor does counsel’s 

inadequate preparation for a specific hearing. As Sandrock failed to establish that his 
19

former counsel’s neglect was excusable, we need not address the remaining two prongs 

of the test used to evaluate whether default judgment should be set aside. 

¶41 Sandrock further asserts that he is entitled to relief under Rule 60(b)(6) as “the 

twisted set of facts in this case meets the ‘extraordinary’ circumstances standard” set 

forth in Rule 60(b)(6). We have frequently held that relief under Rule 60(b)(6) is 

appropriate only upon a showing that subsections (1) through (5) of Rule 60(b) do not 

apply. “It is generally held that if a party seeks relief under any other subsection of Rule 

60(b), it cannot also claim relief under 60(b)(6).” Koch v. Billings Sch. Dist. No. 2, 253 

Mont. 261, 265, 833 P.2d 181, 183 (1992). Here, Sandrock is erroneously attempting to 

obtain relief under both subsections (1) and (6). Relief under Rule 60(b)(6) is not and 

was not available to him.

¶42 For these reasons, we hold the District Court did not slightly abuse its discretion in 

denying Sandrock’s motion for relief and reconsideration of the judgment and judicial 

decree or any previous motions to set aside default. 

¶43 Did the District Court err in its calculation of damages? 

¶44 Sandrock argues that “the District Court abused its discretion in multiple ways by 

erroneously including damages that should never have been awarded to DeTienne and by 

failing to account for and offset certain damages against the total judgment.” 

¶45 On April 13, 2016, the District Court conducted a hearing on damages at which 

both DeTienne and Sandrock testified. At the close of the hearing, Sandrock requested 

the opportunity to file a brief addressing legal issues associated with damages. The 

District Court granted Sandrock two weeks to file a brief but cautioned Sandrock that his 
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brief was not to include new evidence on amounts and figures of damages. Sandrock’s 

subsequent brief addressed concerns of double recovery, as well as speculative and 

punitive damages. DeTienne filed a timely response to Sandrock’s brief requesting 

approximately $3.5 million in compensatory damages and $1,000,000 in punitive 

damages. 

¶46 Relying in part on the WIPFLI Report, the District Court found that The Train 

Station lost profits in the amount to $1,673,926, and Kevin’s operating company, The 

Money Train, lost profits in the amount of $529,245. The District Court reduced the total 

lost profits by the $120,000 Sandrock had initially loaned to the DeTiennes, and awarded 

compensatory damages for economic loss in the amount of $2,083,171. Analyzing 

DeTienne’s claim for punitive damages, the court greatly reduced the amount requested 

and awarded DeTienne $150,000 in punitive damages. The District Court further 

evaluated DeTienne’s request for damages for conversion of personal property and lost 

rental income from The Loose Caboose, an entity owned by Sandrock, but denied these 

claims. 

¶47 Sandrock argues on appeal that the District Court, in relying on the WIPFLI 

Report, erroneously included an award to DeTienne for Loose Caboose income and that 

the calculation of lost profits for The Train Station must be recalculated to remove 

projected income from The Loose Caboose. Sandrock further asserts the District Court’s 

calculation of lost income must be reduced by $3,140 for the erroneous inclusion of a 5% 

service charge. Sandrock claims the District Court failed to account in its damages award 

for the Valley Bank loan to The Train Station in the amount $629,076 for which 
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Sandrock and The Trust are liable. Despite having been disassociated from The Train 

Station by court order, Sandrock maintains he is still responsible for the monthly 

payments on that loan. Additionally, Sandrock contends (1) prejudgment interest should 

not have been awarded; (2) The Money Train damages were speculative and based upon 

conjecture; (3) there was no evidence to support an award of punitive damages; and (4) 

attorney fees were improperly awarded.

¶48 While DeTienne puts forth an argument that the damages were correctly 

calculated and awarded, we remand the case to the District Court for an order setting 

forth its calculation and determination of damages. The court references various sources 

from which it derived amounts utilized in its damages award but we are unable to discern 

how the District Court used these amounts to establish the amount of damages awarded. 

Moreover, the District Court must assess the claims of error put forth by Sandrock to 

determine their validity. The District Court may conduct another damages hearing, if 

necessary, or it may recalculate and clarify its determination of damages using the current 

evidence admitted into the record. 

CONCLUSION

¶49 For the foregoing reasons, we affirm the District Court’s denial of Sandrock’s 

motion to set aside default and default judgment. We remand the matter to the District 

Court for a recalculation of damages and identification of the evidence supporting the 

recalculation, or clarification and identification of supporting evidence of the District 

Court’s calculation of damages included in the Judgment and Judicial Decree. 
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/S/ MICHAEL E WHEAT

We Concur:

/S/ MIKE McGRATH

/S/ LAURIE McKINNON

/S/ DIRK M. SANDEFUR

/S/ JIM RICE