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.
Submitted on Briefs: May 24, 2017
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
Appellants: John C. Doubek, Keif Storrar, Doubek, Pyfer &
Fox LLP, Helena, Montana Perry J. Schneider, Milodragovich,
Dale & Steinbrenner, P.C., Missoula, Montana
Appellees: Stefan T. Wall, Wall, McLean & Gallagher,
PLLC, Helena, Montana
MICHAEL E WHEAT, JUSTICE
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.
A restatement of the issues on appeal is:
Did the District Court slightly abused its discretion when it
denied Sandrock's motion to set aside a default and a
Did the District Court err in its calculation of damages?
AND PROCEDURAL BACKGROUND
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 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. 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.
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.
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.
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.
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,
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.
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.
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 counsel to 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 consolidated
probate/declaratory action proceeding to Lewis and Clark
County for consolidation with Cause No. 09-1105, the eviction
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.
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.
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
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