DAVIS, Justice.
[¶ 2] On appeal, Goforth challenges the district court's sanction limiting his ability to present evidence, its finding that he had trespassed, and the award of damages. We find that the district court's judgment is sound in all respects except for a portion of the damages award. Accordingly, we affirm in part, reverse in part and remand for further proceedings consistent with this opinion.
[¶ 3] Appellant presents three issues for appellate review, which we have rephrased for exactitude:
[¶ 4] Fifield and Goforth own adjacent lots in Cheyenne, Wyoming.
[¶ 5] Their neighborly relationship deteriorated after Goforth began driving wherever he wanted, widened a road, and trenched a water line on Fifield's property without permission. Goforth also parked a pickup truck and camper just over his property line on the edge of Fifield's property.
[¶ 6] After paying for a survey and researching land records, Fifield demanded that the water line be removed and that Goforth use the deeded easement on the west side of his property rather than crossing it on the east side. He also demanded that Goforth remove the pickup truck and camper. Goforth did not accede to any of these demands, but instead further aggravated the situation by fencing off the recorded easement on the west side.
[¶ 7] Fifield filed a complaint seeking damages for trespass, a permanent injunction, and an order quieting title as to the east side access and the water line. He also sought punitive damages. Goforth timely answered, generally denying the allegations. He did not raise any affirmative defenses.
[¶ 8] The district court set a scheduling conference which counsel for both parties attended. The court then entered a scheduling order which was served on counsel by placing it in the respective attorneys' boxes in the clerk of court's office (commonly referred to as "the clerk's boxes") as permitted by Wyoming Rule of Civil Procedure 77(d).
[¶ 9] Fifield complied with the scheduling order by filing expert designations and a trial summary which included witness designations and exhibit lists. Goforth filed nothing. His counsel also failed to attend the final pretrial conference.
[¶ 11] Both parties and their attorneys appeared for the scheduled trial.
At no point during trial did Goforth's counsel make an offer of proof or indicate that he intended or claimed to be entitled to call witnesses other than his client or present exhibits other than those introduced by Fifield.
[¶ 12] Fifield testified and called two expert witnesses, and he offered numerous listed exhibits which were received in evidence without objection, including the following:
[¶ 13] Goforth's counsel cross-examined two of the three witnesses called by Fifield and indicated that he had no questions for the third. Mr. Goforth testified on his own behalf.
[¶ 14] After hearing closing arguments, the district court ruled in Fifield's favor from the bench, finding that Goforth had trespassed, awarding damages in the amount of $71,507.50, and granting the requested injunction. It declined to award punitive damages, and it entered a Judgment and Order Including Injunction reflecting its oral ruling soon thereafter.
[¶ 15] After hiring new counsel, Goforth filed a motion for a new trial under W.R.C.P. 59(a)(5), (6) and (8).
[¶ 16] Goforth timely perfected this appeal.
[¶ 17] Goforth contends that his trial counsel failed to attend the final pretrial conference because he was not adequately served with the scheduling order and therefore did not know when he was required to file and serve pretrial disclosures or the date of conference. Goforth also asserts that the sanction imposed should have been preceded by an opportunity to be heard.
[¶ 18] The record clearly shows that the scheduling order was served upon counsel for both parties through their respective counsel's boxes at the Clerk of District Court's office as permitted by W.R.C.P. 77(d). That rule states:
W.R.C.P. 77(d) (emphasis added).
[¶ 19] Goforth argues that this rule does not provide due process, but when we apply the applicable standard of review, we can easily confirm Rule 77(d)'s constitutional soundness. See Reynolds v. Bonar, 2013 WY 144, ¶ 7, 313 P.3d 501, 503 (Wyo.2013) ("Constitutional issues are questions of law, which we review de novo."). Our jurisprudence and that beyond these borders provides no support for Goforth's faint assertion that a rule may not constitutionally permit orders to be served by placement in clerk's boxes.
[¶ 20] Before leaving the subject, we feel compelled to note that Goforth's counsel attended the scheduling conference. His claim of surprise concerning pretrial tasks is unavailing because he was present when the case schedule was developed. Additionally, Fifield's lawyer served his pretrial designations
[¶ 21] Turning next to the sanction imposed upon Goforth for failing to attend the final pretrial conference, the law is clear that district courts have broad discretion to impose sanctions under the Wyoming Rules of Civil Procedure. See In re Guardianship of Bratton, 2014 WY 87, ¶ 22, 330 P.3d 248, 253 (Wyo.2014). Thus, "[w]e review decisions imposing sanctions for abuse of discretion." Id.
[¶ 22] As we recently explained in Bratton, W.R.C.P. 16(f) authorizes district courts to impose sanctions for not attending a scheduled pretrial conference. Bratton, ¶ 21, 330 P.3d at 253. That rule states:
W.R.C.P. 16(f).
[¶ 23] Rule 37(b)(2)(B) authorizes a trial court to enter "[a]n order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the disobedient party from introducing designated matters in evidence." W.R.C.P. 37(b)(2)(B). That is precisely what the district court did. Limiting Goforth's presentation of evidence at trial to his own testimony and whatever could be developed through cross-examination was a remedy well within the court's sound discretion. To do otherwise would have been unfair to Fifield, whose counsel complied with the order, had no notice of what evidence Goforth might try to offer, and wanted to keep his client's trial date in order to obtain relief from the continuing trespasses.
[¶ 24] The question then becomes whether, as Goforth contends, the district court needed to sua sponte hold a hearing concerning the sanction imposed under W.R.C.P. 37(b) before imposing it at the start of trial. While the rules are silent on this issue, a review of our case law confirms that the district court did not have to conduct a hearing before imposing sanctions under these circumstances.
[¶ 25] In Bratton, the district court dismissed the case for the pro se litigant's failure to file required pretrial disclosures and absence from the pretrial conference. 2014 WY 87, ¶ 20, 330 P.3d at 252. We affirmed, concluding that because there was no explanation for his omissions, the district court acted well within its discretion. Id., ¶ 25, 330 P.3d at 253.
[¶ 26] Similarly, in Travelers Insurance Co. v. Palmer, the district court dismissed the complaint when the plaintiff's counsel did not file a pretrial memorandum or attend the pretrial conference without previously contacting the court or offering any explanation for the omissions. 714 P.2d 765, 765 (Wyo. 1986). We concluded that when the record contains no timely explanation for a party's failure to appear, we cannot find an abuse of discretion if the district court dismisses the case. Id. at 767.
[¶ 27] Although these cases did not squarely deal with the absence of a hearing, no hearing was held in either case, in both of which counsel failed to comply with the pretrial order and appear. The lesson to be gleaned from them is that no hearing is required in the case of an unexplained failure to comply. The onus was on Goforth's trial counsel to provide a timely and adequate
[¶ 28] This case is an egregious example of failure to comply with a reasonable order intended to expedite ligation, and the court exercised considerable restraint in selecting the sanction it did. We can divine no explanation for the omissions from the record before us, because Goforth's trial counsel never offered one, and because he never asked for an opportunity to explain himself. Nowhere in the record did he ever say that he was unaware that orders were served on attorneys with offices in Cheyenne through the clerk's boxes.
[¶ 29] Counsel did not even object to the sanction, but when advised of it, simply said "I think that will work, Your Honor," which suggests that he believed he could adequately present his client's case under the strictures imposed. In addition, counsel made no offer of proof which would suggest that he had evidence which might have been favorable to his client, leaving this Court in the dark as to whether there was additional evidence, and with no means of determining whether the ruling, if it had been error, was harmless or not. See Guy-Thomas v. Thomas, 2015 WY 35, ¶ 12, 344 P.3d 782, 786 (Wyo.2015).
[¶ 30] Goforth next claims that he had implied easements for a water line down the middle of Fifield's property and an access road on the eastern portion of it. Therefore, he asserts, the district court erred in its determination that he trespassed.
[¶ 31] In order to prove an implied easement, three elements must be shown. We have explained:
Hansuld v. Lariat Diesel Corp., 2015 WY 12, ¶ 9, 341 P.3d 428, 431 (Wyo.2015) (citation and quotation marks omitted). An "implied easement will be recognized where the easement is consistent with the intentions of the parties to a conveyance." Miner v. Jesse & Grace, LLC, 2014 WY 17, ¶ 35, 317 P.3d 1124, 1136 (Wyo.2014). "The implied easement does not arise where the parties to the conveyance expressly agree otherwise or where proof of its elements is not established." Id. (quoting Hansuld v. Lariat Diesel Corp., 2010 WY 160, ¶ 10, 245 P.3d 293, 298 (Wyo. 2010)).
[¶ 32] We can easily dispose of this claim for a pair of reasons. Goforth did not raise implied easement as an affirmative defense, make a counterclaim, or even explicitly mention such a theory at trial.
[¶ 33] Furthermore, our review of the record confirms that the evidence was insufficient to prove an implied easement. Goforth did testify that Mr. Collins, through whom he claims title, at one time owned all of the property he and Fifield now own, and
[¶ 34] We therefore conclude that the district court's ruling that Goforth trespassed upon Fifield's property is supported by the record, and that he did not prove an implied easement which would provide a defense to those trespasses. Ultra Res., Inc. v. Hartman, 2010 WY 36, ¶ 97, 226 P.3d 889, 922 (Wyo.2010) ("After a bench trial, we review the trial court's factual findings under a clearly erroneous standard and its legal conclusions de novo.") (citation omitted).
[¶ 35] Fifield presented evidence of different types of trespass by Goforth, and the district court awarded damages for each. See supra ¶¶ 12, 14. Goforth contends that the damages awarded for reclamation costs and storage fees cannot stand.
[¶ 36] "The district court's decision on the amount of damages to award involves a question of fact." Velasquez v. Chamberlain, 2009 WY 80, ¶ 27, 209 P.3d 888, 895 (Wyo.2009). "We review findings of fact after a bench trial under the clearly erroneous standard...." Id.; Cross v. Berg Lumber Co., 7 P.3d 922, 928 (Wyo.2000) ("Damages ... are reviewed as fact and are not reversed unless clearly erroneous."). "While damages are normally subject to clear error review, the underlying legal standards are pure issues of law subject to de novo review." Cross, 7 P.3d at 931.
[¶ 37] When real property has been damaged or destroyed by a wrongful act such as trespass, the desired objective is to ascertain as accurately as possible the amount of money that will fairly and adequately compensate the owner for the loss. See City of Kemmerer v. Wagner, 866 P.2d 1283, 1287 (Wyo.1993); 75 Am.Jur.2d Trespass § 100 (2d ed. updated 2015). We have succinctly explained:
City of Kemmerer, 866 P.2d at 1287 (quoting Town Council of Town of Hudson v. Ladd, 37 Wyo. 419, 425-26, 263 P. 703, 705 (1928)); 75 Am.Jur.2d Trespass §§ 97-99, 107; c.f. Legacy Builders, LLC v. Andrews, 2014 WY 103, ¶ 15, 335 P.3d 1063, 1068 (Wyo.2014). "In any case, the lower of the two figures, cost of repairs as compared to the difference in value before and after, will demonstrate the damage ceiling." City of Kemmerer, 866 P.2d at 1288; Legacy Builders, ¶ 20, 335 P.3d at 1069.
[¶ 38] Wyoming law is consistent with the Restatement (Second) of Torts, which states:
Restatement (Second) of Torts § 929 (1979 updated 2015).
[¶ 39] We are convinced that the district court awarded appropriate damages
[¶ 40] However, we find that the $57,820 awarded for damages related to Goforth parking a camper and pickup truck on Fifield's property is not adequately supported by the evidence. "In Wyoming, damages must be proven with a reasonable degree of certainty, but proof of exact damages is not required." WSP, Inc. v. Wyoming Steel Fabricators & Erectors, Inc., 2007 WY 80, ¶ 19, 158 P.3d 651, 655 (Wyo.2007). That said, "[a] district court may not speculate or conjecture about the proper amount of damages." Id.
[¶ 41] The only damage evidence that Fifield presented concerning this trespass was the rate the City of Cheyenne allows towing companies to charge for storing towed vehicles. While exact certainty of the amount of damages need not be proven, remote, conjectural or speculative damages are not allowed. See Reposa v. Buhler, 770 P.2d 235, 238 (Wyo.1989); Velasquez, ¶¶ 27-33, 209 P.3d at 895-96.
[¶ 42] The question to be determined was what amount Fifield lost because of the vehicles parked on his property. The fact that the City of Cheyenne charges $35 a day for impounded vehicle storage does not mean that Fifield lost this amount by virtue of being unable to use that portion of his property. That rate would amount to over $1,000 per month, which strongly suggests that it is intended to deter illegal parking and other violations. Although Goforth's misconduct might have been sufficient to allow an award of punitive damages to provide similar deterrence, the court declined to award them.
[¶ 43] The evidence presented by Fifield on this issue is too remote to sustain the damages awarded by the district court. Given the speculative nature and the paucity of proof presented, we must reverse that portion of the damages award. Hatch v. Walton, 2015 WY 19, ¶ 20, 343 P.3d 390, 394-95 (Wyo.2015) ("[W]e will set aside a factual finding that is unsupported by the record, and will do likewise even in the face of some supporting evidence when all of the evidence leaves us with the definite and firm conviction that the trial court has made a mistake.").
[¶ 44] When no actual damages are shown, "Wyoming follows the general rule that `at least' nominal damages are available where an actionable trespass has occurred." Bellis v. Kersey, 2010 WY 138, ¶ 20, 241 P.3d 818, 825 (Wyo.2010). Accordingly, we will remand for the district court to award nominal damages not to exceed $100 for the trespass relating to the pickup truck and camper.
[¶ 45] The district court did not abuse its discretion in sanctioning Goforth as it did for his attorney's failure to comply with its scheduling order or attend the final pretrial conference. Furthermore, it did not err in ruling that Goforth trespassed upon Fifield's property, as Goforth did not present any claim, evidence, or argument that an implied easement allowed him to use the property as he did. The district court did not commit clear error when it awarded damages for reclamation resulting from Goforth's trespasses, but it did err in awarding damages in the amount of $57,820 for damages resulting from Goforth's camper and pickup truck being parked on Fifield's property from November