Rosty v. Skaj

Citation272 P.3d 947,2012 WY 28
Decision Date24 February 2012
Docket NumberS–11–0136.,Nos. S–11–0063,s. S–11–0063
PartiesVincent ROSTY, Appellant (Defendant), v. Shari SKAJ and Steve Skaj, Appellees (Plaintiffs).
CourtUnited States State Supreme Court of Wyoming

2012 WY 28
272 P.3d 947

Vincent ROSTY, Appellant (Defendant),
Shari SKAJ and Steve Skaj, Appellees (Plaintiffs).

Nos. S–11–0063


Supreme Court of Wyoming.

Feb. 24, 2012.

[272 P.3d 950]

Representing Appellant: Hampton K. O'Neill and Timothy M. Stubson, Brown, Drew & Massey, LLP, Casper, Wyoming. Argument by Mr. Stubson.

Representing Appellees: Robert T. Ingram, Ingram Olheiser, P.C., Casper, Wyoming; Timothy W. Miller, Miller Law Office, Casper, Wyoming. Argument by Mr. Ingram.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

BURKE, Justice.

[¶ 1] In these consolidated appeals, Appellant, Vincent Rosty, challenges the district court's order entering default judgment and the district court's denial of his motion to set aside entry of default and default judgment. We affirm in part and reverse in part.


[¶ 2] Appellant presents the following issues:

1. Whether Appellant timely appealed the district court's ruling denying Appellant's motion to set aside entry of default and motion to set aside default judgment?

2. Whether the district court erred by permitting the hearing on default judgment to proceed when Appellees failed to provide notice to Appellant of the hearing as required by Rule 55(b)(2)?

3. Whether the district court violated Appellant's due process rights by entering default judgment without allowing Appellant a meaningful opportunity to present evidence on issues of fault and damages?

4. Whether the default judgment issued by the district court is void because of Appellees' failure to properly serve the Appellant with the Complaint and Summons?

5. Whether the district court abused its discretion by failing to set aside the entry of default and the default judgment in this case?

6. Whether the district court's award of punitive damages was permitted where the Appellees failed to provide any evidence of Appellant's wealth?


[¶ 3] Appellees, Shari and Steve Skaj, brought suit against R & R Roofing, Inc., Steve Rosty, and Appellant to recover damages caused when an idling dump truck that had been driven by Appellant was knocked into gear, pinning Ms. Skaj against a motor home. The complaint alleged that the dump truck and R & R Roofing were owned by defendant Steve Rosty, and that the truck was used by Appellant in his employment with the business. The complaint stated causes of action for negligence and negligent infliction of emotional distress, and sought to recover compensatory and punitive damages from all defendants.

[¶ 4] According to the complaint, Appellant was using the truck to deliver roofing supplies when he stopped the truck in an alley behind Ms. Skaj's house. He exited the vehicle and left the engine running with the transmission in neutral, but failed to engage the parking brake. Some roofing material that had been placed in the cab of the truck became dislodged, knocking the transmission into gear and causing the truck to move forward toward the motor home, which was also parked in the alley. Ms. Skaj was severely injured when she was caught between the truck and the motor home. After freeing Ms. Skaj, Appellant took her into her house and placed her on the couch. He then left and drove the truck several miles to the R & R Roofing shop. Mr. Skaj subsequently arrived at the residence and discovered his

[272 P.3d 951]

wife's “nearly lifeless” body on the couch. The complaint alleged that Appellant had used marijuana and methamphetamine prior to the incident and that a blood sample taken from Appellant on the day of the incident revealed the presence of cannabinoids and amphetamines.

[¶ 5] An answer to the complaint was filed on behalf of defendants R & R Roofing and Steve Rosty. Appellant, however, failed to plead or otherwise defend against the allegations in the complaint. As a result, default was entered against Appellant by the clerk of court. After default was entered, the non-defaulting parties were dismissed from the suit without prejudice. On March 23, 2010, the Skajs filed a motion for judgment on the default, and the district court set a hearing on the motion for September 24, 2010. On the day prior to the hearing, counsel retained by Cornhusker Casualty Company entered an appearance on behalf of Appellant and submitted a motion in opposition to the entry of default judgment. Although counsel noted that he had “not yet been able to make contact with [Appellant],” he asserted that, upon information and belief, service of process “may have been insufficient” because service may not have been effected at Appellant's usual place of abode under W.R.C.P. 4(d)(1). Counsel also moved to set aside the entry of default and requested an extension of time to answer the complaint.

[¶ 6] At the default judgment hearing held the following day, the district court denied Appellant's request for a continuance. The court noted that “[T]he entry of appearance and filing yesterday is very last minute. This hearing has been set since June 9, 2010. There's been no showing whatsoever of why representatives of Vincent Rosty could not have pursued the requests that they're now making at an earlier date.” The court did not rule on Appellant's motion to set aside the entry of default because the Skajs had not had an opportunity to respond to the motion, and the matter had not yet been scheduled for a hearing. The court noted, however, that “Defendant Rosty should have an opportunity to schedule that up and pursue it if there's a request to do so.”

[¶ 7] The court then proceeded to address the matter of the default judgment. The court received testimony from Shari and Steve Skaj relating to damages resulting from the incident, and heard arguments from counsel for both parties. At the conclusion of the hearing, the district court determined that default judgment was appropriate. The court found that the allegations in the complaint, which were deemed admitted upon entry of default, and the testimony presented at the hearing, indicated that Appellant was negligent. Based on the Skajs' testimony and the affidavits of various healthcare providers, the court found that Ms. Skaj was entitled to compensatory damages totaling $731,053.25, including medical expenses, past and future pain and suffering, past and future loss of enjoyment of life, past and future disability, and property damage. The court awarded $80,000 to Mr. Skaj for loss of consortium, but denied Mr. Skaj's claim for damages arising from negligent infliction of emotional distress. The court also assessed $75,000.00 in punitive damages against Appellant. A Default Judgment Order was entered on October 11, 2010.

[¶ 8] Appellant filed a notice of appeal from the Default Judgment Order on November 8, 2010, and that appeal was docketed in this Court as No. S–11–0063. Also on November 8, Appellant filed a “Motion to Set Aside Entry of Default or for Relief from Default Judgment” pursuant to W.R.C.P. 55(c), claiming that he was not properly served with the complaint, and did not receive sufficient notice of the default judgment hearing. The district court held a hearing on the motion on December 16, 2010.

[¶ 9] On March 14, 2011, the Skajs filed a “Notice of Denial by Operation of Law,” asserting that the district court had not issued a ruling on Appellant's post-judgment motion within the ninety-day period established by W.R.C.P. 6(c)(2), and that, as a result, the motion was deemed denied. Two days later, Appellant renewed his motion to set aside the default judgment. On the same day, the court issued an “Order Denying Defendant Vincent Rosty's Motion to Set Aside Entry of Default or for Relief from Default Judgment.” On April 14, 2011, Appellant

[272 P.3d 952]

filed a notice of appeal from the district court's denial of his motion to set aside entry of default and default judgment. That appeal was docketed in this Court as No. S–11–0136.

[¶ 10] The Skajs moved to dismiss case number S–11–0136, claiming that this Court is without jurisdiction to consider the appeal because it was not filed within thirty days after Appellant's motion was deemed denied. We denied the motion to dismiss without prejudice and instructed the parties to present additional briefing on the jurisdictional issue. In conjunction with the order denying the motion to dismiss, we consolidated the appeals.

Timeliness of Appeal

[¶ 11] As a threshold matter, we must first determine whether Appellant timely appealed the order denying his motion to set aside entry of default and default judgment. After careful review of the additional arguments and authority presented, we find that the appeal was timely filed.

[¶ 12] The Skajs contend that Appellant's motion was denied ninety days after it was filed under operation of the “deemed denied” provision of W.R.C.P. 6(c)(2). That rule provides, in relevant part, as follows:

Any motion, under Rules 50(b) and (c)(2), 52(b), 59 and 60(b), not determined within 90 days after filing shall be deemed denied unless, within that period, the determination is continued by order of the court, which continuation may not exceed 60 days, at which time, if the motion has not been determined, it shall be deemed denied.

The Skajs begin from the proposition that Appellant's motion to set aside was filed pursuant to W.R.C.P. 60(b), bringing the motion within the reach of the deemed denied rule set forth in W.R.C.P. 6(c)(2). Accordingly, due to operation of the deemed denied rule, they claim that the motion was deemed denied on February 7, 2011, and that Appellant had thirty days from that date to file an appeal pursuant to W.R.A.P. 2.01.

[¶ 13] Appellant contends that a motion to set aside default judgment is not subject to the deemed denied rule because default judgments are governed by Rule 55,1 which is not identified in Rule 6(c)(2). He points out that his motion was filed pursuant to Rule 55(c), and that the district court's order denying his motion also cites Rule 55(c). He claims that, because motions filed under...

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