This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-01-2187

 

 

Ki Gohdes,

Appellant,

 

vs.

 

William Rick, a/k/a Billy Rick,

Respondent.

 

 

Filed July 16, 2002

Affirmed

Anderson, Judge

 

Ottertail County District Court

File No. C2011082

 

 

Jason M. Hastings, Krekelberg & Skonseng, P.L.L.P., P.O. Box 353, Pelican Rapids, MN  56572 (for appellant)

 

William Rick, a/k/a Billy Rick, 51371 Saints Drive, Pelican Rapids, MN  56572 (pro se respondent)

 

            Considered and decided by Halbrooks, Presiding Judge, Anderson, Judge and Hanson, Judge.


 

U N P U B L I S H E D  O P I N I O N

 

G. BARRY ANDERSON, Judge

 

            Appellant Ki Gohdes challenges the adequacy of damages awarded pursuant to a default judgment entered in her favor.  Appellant argues that the district court abused its discretion by denying her future damages for injuries arising from a dog bite.  Because we find no abuse of discretion, we affirm.

FACTS

 

On April 28, 2001, appellant Ki Gohdes was bitten twice in the right knee by a dog belonging to respondent William Rick.  Appellant brought an action against respondent alleging various torts related to the bite.  Respondent did not answer the summons and complaint and did not appear at the scheduled hearing.  Appellant brought a motion for default judgment. 

At the default-judgment hearing, appellant testified that the dog bite had scarred her leg and caused her continuing anxiety.  But appellant acknowledged that she had not lost any income as a result of the bite and that her medical treatment arising from the bite was limited to rabies shots, at a cost of $2,100, and a tetanus shot.  Appellant requested $100,000 in general damages for past and future pain, suffering, and emotional distress. 

The district court entered judgment in appellant’s favor and awarded her $10,000 past damages for pain, disfigurement, and emotional distress and $2,100 past damages for the rabies shots.  The district court noted that appellant had offered no evidence, expert or otherwise, of prospective mental or physical suffering and consequently did not award appellant any future damages for bodily harm, mental harm, or health care expenses.  This appeal followed.

D E C I S I O N

 

The district court has broad discretion in determining damages and “will not be reversed except for a clear abuse of discretion.”  Admiral Merchs. Motor Freight, Inc. v. O’Connor & Hannan, 494 N.W.2d 261, 267 (Minn. 1992) (citation omitted).  This court will not disturb a damage award “unless its failure to do so would be shocking or would result in plain injustice.”  Hughes v. Sinclair Mktg., Inc., 389 N.W.2d 194, 199 (Minn. 1986) (citations omitted).  When reviewing a damage award, this court must consider the evidence in the light most favorable to the judgment.  Rayford v. Metro. Transit Comm’n, 379 N.W.2d 161, 165 (Minn. App. 1985), review denied (Minn. Feb. 14, 1986). 

Appellant did not move for a new trial on damages or ask respondent to consent to an increased award.  See Minn. R. Civ. P. 59.01(e) (new trial may be granted when damages awarded are insufficient); Runia v. Marguth Agency, Inc., 437 N.W.2d 45, 49-50 (Minn. 1989) (stating that district court may grant new trial for inadequate award after allowing party against whom motion is directed to consent to increase of award in lieu of new trial).  In the absence of a motion for new trial, the standard of review “is whether the evidence sustains the findings of fact and whether the findings of fact sustain the conclusions of law and the judgment.”  Moore v. Sordahl, 389 N.W.2d 748, 749 (Minn. App. 1986) (citation omitted).  In reviewing cases tried without a jury, this court will not set aside the findings unless clearly erroneous.  Minn. R. Civ. P. 52.01.  “Where the trial court’s factual findings are reasonably supported by the evidence, they are not clearly erroneous and must be affirmed.”  Tourville v. Kowarsch, 365 N.W.2d 298, 299 (Minn. App. 1985). 

            Appellant had the burden of proving the reasonable certainty of future damages by a fair preponderance of the evidence.  Kwapien v. Starr, 400 N.W.2d 179, 183 (Minn. App. 1987).  Appellant argues that because her future damages claim was not contested by respondent, she was not required to provide expert medical testimony to support the claim.  Generally,

[t]o justify an award of future medical expenses, the plaintiff must show that future medical treatments will be required and must establish the amount of the damages through expert testimony. 

 

Myers v. Hearth Techs., Inc., 621 N.W.2d 787, 793 (Minn. App. 2001) (citation omitted), review denied (Minn. Mar. 13, 2001).  In the absence of expert testimony, future damages “may be proved by showing that [the] plaintiff is not fully recovered at the time of trial.  Edwards v. Engen, 288 Minn. 1, 4, 178 N.W.2d 731, 733 (1970) (citations omitted). 

            Here, appellant neither offered expert testimony nor showed to the district court’s satisfaction that she was not fully recovered.  Appellant cites no authority for her argument that respondent’s failure to contest her claimed damages excused her from establishing the amount of her damages through expert testimony.  The district court observed appellant and heard her testify at the default hearing, and its finding that appellant was fully recovered was not clearly erroneous.

            Appellant cites to Duchene v. Wolstan, 258 N.W.2d 601, 605-06 (Minn. 1977) for the proposition that “[p]roof of future loss ordinarily cannot be made to an absolute certainty and need only be made to a reasonable certainty as established by a preponderance of evidence.”  But Duchene addressed the degree of specificity required of expert testimony concerning future lost business profits.  See id.  Here, appellant presented no expert testimony, and did not ask for future lost business profits. 

            Appellant correctly argues that the relief awarded to the plaintiff in a default judgment must be limited to the amount “specifically demanded in the complaint even if the proof would justify greater relief.”  Thorp Loan & Thrift Co. v. Morse, 451 N.W.2d 361, 363 (Minn. App. 1990) (citation omitted), review denied (Minn. Apr. 13, 1990).  But appellant cites no authority in support of her position that this limitation also requires the district court to award her the full amount specifically demanded in the complaint.  In fact, the district court has a duty to evaluate the evidence and to award damages only where supported by the evidence.   

            The district court did not abuse its discretion by denying appellant’s request for future damages.

            Affirmed.