IN THE SUPREME COURT, STATE OF WYOMING

2014 WY 132

OCTOBER TERM, A.D. 2014

October 27, 2014

KIM BOLDING,

Appellant

(Plaintiff),

v.

KINDEL CONCRETE, LLC

Appellee

(Defendant).

S-14-0045

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.
1

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, 
2

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.
3

[¶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 
4

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:
5

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 
6

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.
7

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-ACar 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).
8

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 
9

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 
10

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.