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,
BRYAN SANDROCK, GG&ME, LLC a Montana Limited Liability Company, and DRAES, INC., a Montana Close Corporation, Defendants and Appellants.
Defendants/Appellants ("Sandrock") have renewed
their motion for a stay of the judgment entered by the
District Court pending appeal. We denied this relief without
prejudice in our order of November 29, 2016, noting that a
final judgment had not yet been entered because an attorney
fee issue was still pending before the District Court.
Following entry of a final judgment by the District Court, we
issued an order on December 13, 2016, which stayed the
judgment pending this Court's resolution of
Sandrock's renewed motion for a stay pending appeal.
Plaintiffs/Appellees ("DeTienne") have filed a
response objecting to the stay request.
District Court entered a judgment by default against
Sandrock, and in favor of DeTienne, on September 28, 2016. A
final judgment, including an award of attorney fees and costs
to DeTienne, was entered on December 12, 2016. The judgment
includes surrender of real property, actual and punitive
damages, pre-judgment interest running from 2009, and
attorney fees and costs. The parties dispute the precise
amount of the judgment, with Sandrock estimating it to be
$3.5 to $4 million, and DeTienne estimating it to be $4.9
has been unable to obtain a bond for purposes of posting
security on appeal, and DeTienne has not waived that
requirement. M. R. Civ. P. 62(f)(2); M. R. App. P. 22(1)(b).
Sandrock moved the District Court for a stay of the judgment
and for approval of alternative security pursuant to M. R.
Civ. P. 62(f)(1), which authorizes a district court, in its
discretion, to "allow alternate forms of security other
than a bond, when adequate equivalent security is provided
and the appealing party can show that the judgment
creditor's recovery is not in jeopardy." However,
the District Court denied these requests, stating that
"[t]he Court finds that the alternative bond proposed,
as outlined by [Sandrock], is not equivalent, or close to
equivalent, to the judgment entered in this matter."
Sandrock has thus sought similar relief from this Court
pursuant to M. R. App. P. 22, which, in like language to M.
R. Civ. P. 62(f)(1), authorizes this Court to approve
"alternative forms of security other than a bond, when
adequate equivalent security is provided and the appealing
party can show that the judgment creditor's recovery is
not in jeopardy." M. R. App. P. 22(5).
in support of Sandrock's request is a personal financial
statement of Bryan Sandrock and his spouse listing a joint
net worth at $6.4 million. Bryan Sandrock's affidavit avers
that he will "not dispose of any monies or assets over
the course of this appeal other than in the course of
ordinary business, " including payment of attorney fees,
and that he can provide "a monthly status report of the
operations of the enumerated assets."
values of the assets listed on the financial statement may
well exceed the estimates of the amount of the judgment, but
there is no assurance of that. The values of the many listed
properties are not verified, with the value of the largest
property premised upon an appraisal conducted in 2009. In
assessing punitive damages, the District Court estimated
Sandrock's net worth to be a lower figure of $5 million.
We note that the listed properties are located in several
different states, and that the ownership rests with various
business entities and individuals, including Bryan Sandrock
and his wife. Further, as stated in the affidavit, it is
proposed that the assets would continue to be used for
business purposes during the appeal, and would therefore be
subject to unknown future economic fluctuations and potential
business reversals. Considering these circumstances, we
conclude that Sandrock's diverse property interests do
not constitute an "adequate equivalent security"
that provides assurance that "the judgment
creditor's recovery is not in jeopardy" in the event
Sandrock does not prevail on appeal. M. R. App. P. 22(5).
recognize the frustration of Sandrock's position that the
large default judgment was entered because of the failures of
previous counsel. Indeed, Sandrock has initiated litigation
against previous counsel over this claim. However, that does
not change the requirements of the rule governing alternative
security on appeal, which we conclude has not been satisfied
here. Therefore, IT IS ORDERED that the motion for approval
of alternate security and for a stay of judgment pending
appeal is DENIED. The stay of judgment previously entered
herein is VACATED.
FURTHER ORDERED that the stay of appeal entered by this Court
in its November 29, 2016, order is VACATED. This appeal may
continue pursuant to the Rules of Appellate Procedure, except
that appellate mediation will be completed within 75 days of
the entry of the final judgment (entered on December 12,
2016), as previously provided in our order of November 29,
Clerk of the Supreme Court is directed to send a copy of this
Order to counsel of record, Mediator David C. Dalthorp, and
Hon. Kathy Seeley, presiding judge, First Judicial District
 Sandrock's briefing and affidavit
uses a net worth figure of $6.9 million, but the financial
statement lists assets of $7.9 million, liabilities of $1.5
million, and a net worth of ...