                                                                                              07/25/2017


                                           DA 16-0649
                                                                                          Case Number: 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
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


                                             2
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.
                                               3
¶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.

                                             4
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 counsel2 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


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

2016 when Sandrock fired him and retained current counsel.
                                             5
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

                                            6
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.



                                            7
¶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.



                                                8
¶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

                                            9
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.

                                           10
¶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.




                                             11
¶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

                                            12
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



                                               13
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

                                              14
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

                                             15
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

                                            16
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,

                                           17
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

                                           18
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




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