                IN THE SUPREME COURT, STATE OF WYOMING

                                        2014 WY 132

                                                            OCTOBER TERM, A.D. 2014

                                                                    October 27, 2014

KIM BOLDING,

Appellant
(Plaintiff),

v.                                                   S-14-0045

KINDEL CONCRETE, LLC

Appellee
(Defendant).

                    Appeal from the District Court of Natrona County
                      The Honorable Catherine E. Wilking, Judge

Representing Appellant:
      Todd Hambrick, Casper, WY.

Representing Appellee:
      Drew A. Perkins of Perkins Law, P.C., Casper, WY.




Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.



NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
HILL, Justice.

[¶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.

                                             ISSUES

[¶2]   Ms. Bolding presents three issues on appeal:

               I.      Did the lower court commit plain error in applying a
                       “reasonable certainty” standard to Plaintiff’s burden of
                       proof on damages, as opposed to a “reasonable
                       probability” standard?

               II.     Did the lower court commit plain error by not settling
                       the dispute between the parties on their Wyoming Rules
                       of Appellate Procedure 3.03 submissions, ignoring both
                       and leaving this Court with little incite [sic] as to the
                       evidence that was actually presented at the Default
                       Hearing in this matter?

               III.    Given the evidence presented at the Default Hearing in
                       this matter, did the lower court abuse its discretion
                       when it found that the Plaintiff had not met her burden
                       of proof and had failed to “demonstrate to the Court”
                       that her damages were caused by Appellee’s negligent
                       entrustment?

                                             FACTS

[¶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

1
  Because the hearing went unreported, Ms. Bolding filed a statement of the evidence pursuant to
W.R.A.P. 3.03. Kindel Concrete responded with its own statement under that same rule. On February 7,


                                                  1
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.

                                             DISCUSSION

Reasonable Probability Standard

[¶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.



2014, the court entered a “Statement of Proceedings Pursuant to W.R.A.P. 3.03.” There, the court
commented, “[Ms. Bolding’s] proposed WRAP 3.03 statement and the attachments thereto do not
accurately reflect the unreported hearing in this matter and improperly attempt to establish an evidentiary
record that was not presented to the trial court.” Thus, to “establish the record on appeal” the court relied
on its decision letter and the order denying the motion to reconsider.


                                                      2
[¶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 (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


                                              3
             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.

W.R.A.P. 3.03

[¶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:


                                             4
                      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
              become part of the record.” [Emphasis in original.]

[¶16] In Northwest Bldg., after the appellant filed its first notice of appeal, it presented a
statement of the evidence to the district court pursuant to W.R.A.P. 3.03 because various
hearings had not been reported. Appellee objected to the appellant’s statement as
including information and arguments not discussed at the hearings. After entering
judgment on the parties’ damages stipulation, the district court informed appellant that it
had ten days to file a supplement to its statement of the evidence and/or request a hearing.
No additional information was submitted, and the district court entered an order striking
contractor’s statement of the evidence, stating:

                      3. [Contractor’s] Statement of the Evidence o[r]
              Proceedings filed on June 27, 2011 does not accurately reflect
              the unreported hearings in this matter and improperly attempts
              to establish an evidentiary record that was not presented to the
              trial court.

                     4. The Court’s orders accurately reflect the status of
              the proceedings and record in this matter.

Id., ¶ 29, 285 P.3d at 246. This Court stated:

              The district court determined that Contractor’s statement of
              the evidence did not accurately reflect the unreported hearings.
              Its orders which were already part of the record recounted the
              status of the proceedings. The determination that Contractor’s
              statement of the evidence was not accurate fell within the
              district court’s discretion and Contractor has not demonstrated
              the court abused its discretion by refusing to accept a
              statement that it found did not accurately reflect the evidence
              produced. We have said that the district court’s refusal to
              settle the record “‘insofar as [it] did not remember the matters


                                              5
              suggested . . . is conclusive.’” Jacobs, 895 P.2d at 444,
              quoting Feaster v. Feaster, 721 P.2d 1095, 1097 (Wyo. 1986).

Id., ¶ 32, 285 P.3d at 247.

[¶17] We begin our analysis in the instant case by reviewing the facts. Because the
default hearing went unreported, Ms. Bolding submitted a statement of proceedings as
required under W.R.A.P. 3.03. Kindel Concrete timely filed its objections and offered
amendments in the form of a restatement of the proceedings. On February 7, 2014, the
district court filed its Statement of Proceedings Pursuant to W.R.A.P. 3.03. There, the
court found that Ms. Bolding’s proposed statement did “not accurately reflect the
evidence presented at the unreported hearing” and that the statement proposed evidence
that was not presented at the hearing. As to the attachments to Ms. Bolding’s statement,
the court ruled that they were an “attempt to establish an evidentiary record that was not
presented to the trial court.” Regarding Kindel Concrete’s objections and amendments,
the court stated:

                     [Ms. Bolding] submitted two attachments to her
              WRAP 3.03 statement, notes of a legal assistant and an
              outline of Plaintiff’s counsel. The attachments were not
              received as evidence in this case, and do not accurately reflect
              what occurred at the hearing on July 22, 2013.

[¶18] “If a court states that it cannot recall the true facts from a proceeding, then the
statement has not, and cannot, be approved or settled.” Feaster v. Feaster, 721 P.2d
1095, 1097 (Wyo. 1986). In Maynard v. Maynard, 585 P.2d 1201, 1202 (Wyo. 1978),
we stated:

                     Because the trial court did not approve or settle this
              portion of the statement as it refers to the evidence question, it
              is therefore no part of the record, and cannot be accepted as
              such. It was not error for the judge to fail to settle the record
              insofar as he did not remember the matters suggested, and the
              judge’s statement that he has no such recollection is
              conclusive. [Citations omitted.]

There was no abuse of discretion by the district court when it refused to accept Ms.
Bolding’s statement of proceedings or settle any disputes to determine inaccuracies in
each of the parties’ statements.




                                              6
Damages

[¶19] Ms. Bolding’s last argument on appeal is that the district court abused its
discretion when it found that given the evidence in this case she had not met her burden
to prove that her damages were caused by Kindel Concrete’s negligent entrustment. Ms.
Bolding argues that damages must be proven by a preponderance of the evidence. Ms.
Bolding complains that the district court’s decision letter and order denying
reconsideration provide little more than vague references to the evidence presented.
Kindel, on the other hand, faults Ms. Bolding for citing evidence that does not appear in
the record.

                    Generally, a plaintiff in a negligence action must
             establish four elements of a cause of action: duty, breach,
             proximate cause, and damages. Daily v. Bone, 906 P.2d 1039,
             1043 (Wyo. 1995); Hamilton v. Natrona County Educ. Ass’n,
             901 P.2d 381, 384 (Wyo. 1995); Jack v. Enterprise Rent-A-
             Car Co. of Los Angeles, 899 P.2d 891, 894 (Wyo. 1995). In a
             case involving unliquidated damages, where default has been
             entered, the defendant may no longer contest liability, but may
             contest the issue of damages. Vanasse v. Ramsay, 847 P.2d
             993, 996-997 (Wyo. 1993); Spitzer v. Spitzer, 777 P.2d 587,
             592 (Wyo. 1989).

Schaub v. Wilson, 969 P.2d 552, 556 (Wyo. 1998). As we stated in Spitzer v. Spitzer,
777 P.2d 587, 592 (Wyo. 1989):

             The distinction between an entry of default and a default
             judgment must here be recognized. Mora, 611 P.2d at 849. See
             generally 10 C. Wright, A. Miller & M. Kane, supra at §§
             2682 and 2683, and W.R.C.P. 55(a) and (b). Entry of default is
             normally a clerical act which may be performed by the clerk of
             court, and it does not constitute a judgment. The entry of
             default generally forecloses the party found to be in default
             from making any further defense or assertion with respect to
             liability or an asserted claim. Zweifel v. State ex rel.
             Brimmer, 517 P.2d 493 (Wyo. 1974); 10 C. Wright, A. Miller
             & M. Kane, supra at § 2688. Although the entry of default
             generally establishes the fact of liability according to the
             complaint, it does not establish either the amount or the degree
             of relief. Adel v. Parkhurst, 681 P.2d 886, 890 (Wyo. 1984); 6
             J. Moore, W. Taggart & J. Wicker, Moore’s Federal Practice
             ¶ 55.03[2] (2d ed. 1988).



                                            7
We elaborated in Spitzer:

             The default judgment, on the other hand, in addition to the fact
             of liability, defines the amount of liability or the nature of the
             relief. This is generally done separately from the entry of
             default. Only in those situations where the damages sought are
             liquidated and claimed in the complaint may the court grant
             relief without further proceedings. This principle is
             encompassed in W.R.C.P. 54(c), which provides in part that
             “[a] judgment by default shall not be different in kind from or
             exceed in amount that prayed for in the demand for judgment.”
             In certain circumstances, a claimed liquidated sum can be
             awarded by the clerk of court. W.R.C.P. 55(b)(1). Where the
             damages or relief claimed are unliquidated or not specified
             with certainty in the complaint, further proceedings are
             indicated. W.R.C.P. 55(b)(2) provides for entry of default
             judgment by the court. It reads, in relevant part:

                  If, in order to enable the court to enter judgment or to
                  carry it into effect, it is necessary to take an account or to
                  determine the amount of damages or to establish the truth
                  of any averment by evidence or to make an investigation
                  of any other matter, the court may conduct such hearings
                  or order such references as it deems necessary and
                  proper, and shall accord a right of trial by jury to the
                  parties when and as required by any statute.

             In Farrell, 713 P.2d at 1179, we noted, with respect to the
             permissive nature of the above rule, that

                      “Rule 55 does not require that testimony be presented
                      as a prerequisite to the entry of a default judgment.
                      However, when it seems advantageous, a court may
                      conduct a hearing to determine whether to enter a
                      judgment by default.” 10 Wright, Miller & Kane,
                      Federal Practice and Procedure: Civil 2d § 2688
                      (1983).

                  * * * The determination of whether a hearing is necessary
                  under Rule 55(b)(2) is also within the sound discretion of
                  the trial court.
             The scope of discretion afforded the trial court under the rule,
             however, does not extend to the entry of a default judgment


                                             8
             where the damages are not liquidated or articulated with
             certainty. In Adel, 681 P.2d at 892, we said:

                  The burden, however, is upon those seeking more than
                  mere nominal damages to prove their damages. The
                  requirement of Rule 55(b)(2), W.R.C.P., of a hearing
                  with respect to damages which are not liquidated is
                  consistent with the rule of those cases. The default
                  permitted by a defendant does not concede the amount
                  demanded for unliquidated damages.

Spitzer, 777 P.2d 587 at 592-93.

[¶20] Indeed, the burden of proof here is on Ms. Bolding to establish that the damages
she seeks were caused by the negligence of Kindel Concrete. Ms. Bolding presented five
exhibits during the default hearing. She also testified during the hearing on direct
examination and cross-examination. Ms. Bolding’s testimony included details regarding
the accident and her physical injuries. Ms. Bolding requested $338,968.73 in damages
with 50% of the fault apportioned to Kindel Concrete. According to the decision letter,
Kindel Concrete argued in opposition of that request and argued that Ms. Bolding had not
met her burden. The district court agreed and found as follows:

             [Ms. Bolding] introduced almost no evidence of the alleged
             comparative fault of [Kindel Concrete], relying almost
             exclusively on Exhibits 3 and 6. [Ms. Bolding] argued that
             [Kindel Concrete] knew or should have known about
             [Ouimette’s] driving record and by negligently entrusting him
             with a company vehicle, [Kindel Concrete] was fifty percent
             (50%) liable for her injuries and subsequent damages.
             Unfortunately, this was merely argument and was not
             sufficiently supported by evidence at the hearing. Mr. Kindel
             was present at the hearing, and available as a witness but [Ms.
             Bolding] did not call him in an effort to establish comparative
             fault. [Ms. Bolding] failed to meet her burden of proof in this
             regard, and the Court will not speculate as to what percentage
             of fault may or may not be attributable to [Kindel Concrete].

                    [Ms. Bolding] requested damages based on a weekly
             calculation for physical therapy, but she failed to present
             evidence that she required therapy once a week, and her own
             physical therapist said she should see him only once every two
             weeks. [Ms. Bolding] also failed to present any evidence that
             she needed physical therapy every week (or even every two


                                            9
              weeks) for the rest of her life. [Ms. Bolding] further failed to
              present any evidence about her life expectancy. These failures
              leave the Court guessing how long she would need to receive
              physical therapy. [Ms. Bolding] requested $67,000.00 for past
              loss of enjoyment of life and pain and suffering, but failed to
              present evidence to support such a request.

                     It remains a mystery to the Court why [Ms. Bolding]
              did not present this evidence at the hearing. … The Court can
              only assume the evidence was available to [Ms. Bolding],
              through documentary evidence or witness testimony or both.
              For whatever reason, it was not presented, and accordingly,
              [Ms. Bolding] has failed to meet her burden of proof, and the
              Court cannot award her any damages in this case.

[¶21] Given the clearly erroneous standard under which we are operating which instructs
this Court to presume that the district court’s findings of fact are correct, along with the
unfortunate fact that the hearing in this case went reported, our hands are tied. Even after
a thorough review of the record, which is comprised mostly of exhibits, we affirm the
district court.

                                     CONCLUSION

[¶22] We affirm the district court. The district court corrected any error it made with
regard to the standard it used to assess Ms. Bolding’s evidence of damages. Also, the
district court did not err when it refused to settle the record pursuant to W.R.A.P. 3.03.
Finally, we conclude that the district court did not abuse its discretion when it found that
Ms. Bolding had not met her burden to prove her damages were caused by Kindel
Concrete’s negligence.




                                              10
