Bolding v. Kindel Concrete, LLC, S–14–0045.
| Decision Date | 27 October 2014 |
| Docket Number | No. S–14–0045.,S–14–0045. |
| Citation | 336 P.3d 144,2014 WY 132 |
| Parties | Kim BOLDING, Appellant (Plaintiff), v. KINDEL CONCRETE, LLC, Appellee (Defendant). |
| Court | Wyoming Supreme Court |
Representing Appellant: Todd Hambrick, Casper, WY.
Representing Appellee: Drew A. Perkins of Perkins Law, P.C., Casper, WY.
Before BURK E, C.J., and HILL, KITE, DAVIS, and FOX, JJ.
[¶ 1] Ms. Kim Bolding challenges an order denying her request for a default judgment and claims the district court erred in failing to settle the record and in ruling that she did not prove her damages resulting from a car accident. We will affirm.
[¶ 2] Ms. Bolding presents three issues on appeal:
[¶ 3] In December of 2009 a vehicle owned by Kindel Concrete, LLC, rear-ended Kim Bolding's vehicle. Tim Ouimette, a Kindel Concrete employee, was driving the vehicle that rear-ended Ms. Bolding. Two years later, in July of 2011, Ms. Bolding filed suit against Kindel and Ouimette stating claims for negligence and negligent entrustment. Ouimette timely answered Ms. Bolding's complaint and they later settled. However, Kindel Concrete failed to timely answer and default was entered against it.
[¶ 4] On July 22, 2013, a default judgment hearing occurred. It went unreported.1 Both parties appeared and Ms. Bolding testified on her own behalf. She also entered five exhibits including a deposition from her physical therapist. The court ruled against Ms. Bolding and concluded that she failed to prove causation and damages. Ms. Bolding filed a motion to reconsider and objected to the court's application of a “reasonable certainty” standard when the correct standard was “reasonable probability.” The court denied Ms. Bolding's motion to reconsider and addressed the standard clarifying that the court “applied the preponderance of the evidence standard ..., and unfortunately for the Plaintiff, she failed to meet her burden of proof under that standard.”
[¶ 5] On November 13, 2013, the court entered its “Order Denying Judgment” and dismissed Ms. Bolding's lawsuit. This appeal was taken from that order.
[¶ 6] First, Ms. Bolding argues that the district court erred when it applied a “reasonable certainty” standard when it assessed Ms. Bolding's evidence of damages. Ms. Bolding submits that the reasonable certainty standard only applies in contract cases and that here, a reasonable probability standard was the correct standard to be applied. Kindel Concrete responds that the district court applied the correct standard and that the evidence supports its decision. Kindel Concrete points out that in its order denying reconsideration the district court clarified any confusion regarding the standard of proof. We agree with Kindel.
[¶ 7] In Hashimoto v. Marathon Pipe Line Co., 767 P.2d 158 (Wyo.1989), this Court made absolutely clear the difference between the standards of “reasonable certainty” and “reasonable probability.” The words “reasonable probability” should more precisely be the standard employed in civil personal injury jury instructions to avoid confusion. Id. at 165. In comparison, the phrase “reasonably certain” or “reasonable certainty” connotes freedom from doubt. “Since none of us can see into the future, it appears quite illogical to attach such a standard to proving future pain and suffering in a personal injury case.” Id. at 167. The Hashimoto court found that the jury was improperly instructed to apply the “reasonable certainty” standard of proof for determining damages instead of the more appropriate “reasonable probability” test. However, the Court concluded that the injury victim was not prejudiced by use of the stringent standard so the instruction did not constitute reversible error. We find the same to be true in this case.
[¶ 8] Here, Ms. Bolding filed a motion to reconsider and objected to the court's application of a “reasonable certainty” standard when the correct standard was “reasonable probability.” The court denied Ms. Bolding's motion to reconsider and addressed the standard clarifying that the court “applied the preponderance of the evidence standard ..., and unfortunately for the Plaintiff, she failed to meet her burden of proof under that standard.”
[¶ 9] The court stated in greater context:
[Ms. Bolding] alleges that the court did not apply the preponderance of the evidence standard to her case and instead believes that the Court imposed a reasonable degree of certainty standard. This is apparently due to Plaintiff's reading of the Court's reference to the Schlinger case on pages 4 and 6 of the Decision Letter. To the extent Plaintiff has read far too much into that reference, the Court will clarify that the citation to that case was made to reinforce that the Plaintiff has the burden of producing sufficient evidence to prove her damages and that the Court may not resort to speculation or conjecture in determining the proper amount to award. [Emphasis in original.]
[¶ 10] It is well-settled that a party seeking damages for future medical expenses bears the burden of proving damages by a preponderance of the evidence. Jennings v. C.M. & W. Drilling Co., 77 Wyo. 69, 73, 307 P.2d 122 (Wyo.1957). The amount of damages needs to be proven only to such a degree that the finder of fact can make a reasonable estimate.
[¶ 11] Here, the court did not apply the higher “reasonable certainty” standard. In its order, it is clear that the court was making clear its assessment that Ms. Bolding's proof on damages was only speculative, and thus she did not meet the required standard. The court further stated:
[Ms. Bolding] bore the burden of proof even though Kindel Concrete, LLC was in default. [Ms. Bolding] still had to produce sufficient evidence to support her request for damages and to establish the percentage of fault attributable to [Kindel]. Based on the Court's observations, at the start of the hearing, [Ms. Bolding's] counsel was unclear on how to proceed and asked the Court what its preference was with regard to the presentation of [Ms. Bolding's] position. The court advised it could not tell [Ms. Bolding's] counsel how to present his case, and he could proceed with whatever he would like the court to consider. It then appeared to the Court that he intended to provide the Court with a stack of documents and then argue for the relief sought. Once counsel for [Kindel Concrete] objected to the summary entry of all [Ms. Bolding's] proffered documents and the objection was sustained, [Ms. Bolding's] counsel was visibly frustrated, but did call [Ms. Bolding] to the stand to elicit testimony and enter select exhibits from the aforementioned stack of documents.
The district court was correct when it concluded as it did—that Ms. Bolding failed to prove by a preponderance of the evidence that the future medical expenses she claimed were reasonably probable (not reasonably certain) to occur as the result of the accident.
[¶ 12] Ms. Bolding next argues that the district court erred by not settling the record pursuant to W.R.A.P. 3.03. Ms. Bolding comments that the rule required the court to settle any disputes in the parties' respective statements of evidence. Kindel Concrete asserts that the court did not abuse its discretion when it refused to reconcile or approve either party's statement of evidence. We conclude that based upon its lack of recollection, the court properly refused to settle the record.
[¶ 13] “It is within the district court's discretion whether to approve a statement pursuant to W.R.A.P. 3.03.” Jacobs v. Jacobs, 895 P.2d 441, 444 (Wyo.1995). “It is properly an appellant's burden to bring to us a complete record on which to base a decision.” Id. at 443 (quoting Scherling v. Kilgore, 599 P.2d 1352, 1357 (Wyo.1979) ).
[¶ 14] W.R.A.P. 3.03 states:
If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, appellant may prepare a statement of the evidence or proceedings from the best available means including appellant's recollection. The statement shall be filed and served on appellee within 35 days of the filing of the notice of appeal. Appellee may file and serve objections or propose amendments within 15 days after service. The trial court shall, within 10 days, enter its order settling and approving the statement of evidence, which shall be included by the clerk of the trial court in the record on appeal.
[¶ 15] As to the purpose of the rule, we stated in Northwest Bldg. Co., LLC v. Northwest Distrib. Co., 2012 WY 113, ¶ 31, 285 P.3d 239, 247 (Wyo.2012) as follows:
The purpose of the W.R.A.P. 3.03 procedure is to provide an accurate record of the evidence presented in the district court. White v. Table Mountain Ranches Owners Assoc., Inc., 2006 WY 2, ¶ 8, 125 P.3d 1019, 1021 (Wyo.2006). To that end, Rule 3.03 sets out a process whereby the appellant submits a statement of the evidence, the opposing party objects or proposes amendments, and the district court settles and approves the statement. In TOC v. TND, 2002 WY 76, ¶ 3, n. 1, 46 P.3d 863, 867, n. 1 (Wyo.2002), we stated “W.R.A.P. 3.03 clearly requires trial court approval of a statement before it can properly be considered settled and...
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..."It is within the district court's discretion whether to approve a statement pursuant to W.R.A.P. 3.03." Bolding v. Kindel Concrete, LLC , 2014 WY 132, ¶ 13, 336 P.3d 144, 147 (Wyo. 2014) (quoting Jacobs v. Jacobs , 895 P.2d 441, 444 (Wyo. 1995) ). "[W]e review the district court's decision......
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