author: PER CURIAM:

text:
    2003 UT App 312
    DRAPER CITY, Plaintiff and Appellee, v. Daniel ROPER, Defendant and Appellant.
    No. 20030480-CA.
    Court of Appeals of Utah.
    Sept. 18, 2003.

      Mary C. Corporon, Corporon & Williams PC, Salt Lake City, for Appellant.
    L.G. Cutler, Salt Lake City, for Appellee.
    Before JACKSON, P.J., and GREENWOOD and THORNE, JJ.
   MEMORANDUM DECISION

PER CURIAM:

1 Defendant Daniel Roper appeals from the district court's order denying his motion to withdraw his guilty plea in abeyance, following a hearing de novo, in a case originating in justice court. This case is before the court on its own motion for summary dismissal for lack of jurisdiction. See Utah R.App. P. 10(e).

112 "A defendant convicted and sentenced in justice court is entitled to a hearing de novo in the district court ... if he files a notice of appeal within 30 days of ... an order denying a motion to withdraw a plea." Utah Code Ann. § 78-5-120(8)(d) (2002). "The decision of the district court is final and may not be appealed unless the district court rules on the constitutionality of a statute or ordinance." Id. § 78-5-120(7).

13 Defendant pleaded guilty in justice court, then filed a motion to withdraw his plea. After the justice court denied his motion, Defendant appealed the denial of his motion to the district court, which held a hearing de novo. Defendant did not raise and the district court did not rule on the constitutionality of a statute or ordinance. Therefore, the district court's decision may not be appealed to this court. See id.

11 4 Defendant contends that section 78-5-120(7) limits this court's review only when a defendant receives a trial de novo, which he did not receive. However, section 78-5-120 limits this court's review of a district court "decision" and makes no distinction between a decision in a trial and a decision in a hearing de novo. See id. § 78-5-120(1), (8), (7).

T5 Defendant further contends that dismissal of this appeal will deny him a trial de novo and therefore will deny him his constitutional right to an appeal. "'[Thhe right to an "appeal" from a court not of record is satisfied by provision for a trial de novo in a court of record."" Dean v. Henriod, 1999 UT App 50, ¶ 9, 975 P.2d 946 (quoting Monticello City v. Christensen, 788 P.2d 513, 516 (Utah 1990)). In the present case, Defendant appealed the justice court's denial of his motion to withdraw his plea to the district court. The district court held a hearing de novo on Defendant's motion to withdraw his plea. Therefore, any right Defendant had to appeal the denial of his motion to withdraw his plea by the justice court, a court not of record, was satisfied by the hearing de novo in the district court, a court of record. Cf. id. Moreover, Defendant could have sought a trial de novo by filing a notice of appeal within thirty days of entering his plea. See Utah Code Ann. § 78-5-120(1)(b). However, Defendant filed a motion to withdraw his plea in the justice court, then appealed the justice court's denial of his motion to the district court.

T6 Because the district court did not rule on the constitutionality of a statute or ordinance in the hearing de novo, this court lacks jurisdiction to consider Defendant's appeal. "When a matter is outside the court's jurisdiction it retains only the authority to dismiss the [matter]." Varian-Eimac, Inc. v. Laomoreaux, 767 P.2d 569, 570 (Utah Ct. App.1989).

T7 Accordingly, Defendant's appeal is dismissed.


source: Caselaw Access Project

author: VOIGT, Justice.

license: Public Domain

text:
    2003 WY 136
    Anthony M. ABEYTA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-143.
    Supreme Court of Wyoming.
    Oct. 28, 2003.

      Representing Appellant: Kenneth M. Ko-ski, Public Defender; and Donna D. Domon-kos, Appellate Counsel.
    Representing Appellee: Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Theodore E. Lauer, Director, Prosecution Assistance Program; and Heather Roth, Student Intern.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[¶1] Anthony Abeyta (Abeyta) appeals from his conviction of a fourth offense of battery on a household member in violation of Wyo. Stat. Ann. § 6-2-501(b) and (FM) (LexisNexis 2008), a felony. The district court sentenced Abeyta to a term of not less than 657 or more than 780 days in the custody of the Wyoming Department of Corree-tions, with eredit against the minimum and maximum sentence for 141 days in presen-tence confinement. We affirm the conviction, but vacate the sentence and remand to the district court for a new sentencing hearing.

ISSUES

[¶2] The issues presented by the parties are as follows:

1. Whether the prosecutor committed misconduct when he elicited from a witness a comment on the right to remain silent and comments which usurped the jury's function.
2. Whether the State failed to prove Abeyta had prior domestic violence convictions necessary to convict him of a felony in this case.

We choose to address an additional, fundamental issue:

8. Whether Abeyta's absence from the sentencing proceeding violated W.R.Cr.P. 43.

FACTS

[¶8] On November 16, 2001, Abeyta was charged with battery against a household member. An Information filed November 28, 2001, alleged that Abeyta had previously been convicted of battery against a household member on two or more 'vceasions in violation of Wyo. Stat. Ann. § 6-2-501(£)(i), enhancing the potential punishment to that for a felony.

[¶4] According to Shirley Gonzales (Gonzales), she and Abeyta began dating in September 2001. Abeyta lived with his mother while he dated Gonzales, but spent three or four nights a week at Gonzales' apartment. Gonzales testified that Abeyta abused her on two separate occasions, but he was only charged with the incident that occurred on November 14, 2001. Gonzales testified that the first time Abeyta abused her, around November 7, 2001, he pushed her into the bathtub, hit her with the shower curtain rod, and smashed her finger with the toilet seat when she tried to get up. Gonzales testified that she slept in her bedroom closet that night because she feared Abeyta might hurt her again.

[¶5] On November 14, 2001, Gonzales agreed to meet Abeyta at a local bar. Gonzales arrived at approximately 7:20 p.m., but she and Abeyta left soon afterwards and went their separate ways. Gonzales returned to her apartment and then left when she realized Abeyta was there. Gonzales went to a fast food restaurant and ate, went to a park and meditated, and then returned to her apartment to find Abeyta in the kitchen cooking. Gonzales changed her clothes and began reading her Bible in the bedroom.

[¶6] Gonzales testified that Abeyta then entered the bedroom and started throwing food at her and accused her of sleeping with his brother. Abeyta continued to enter and leave the bedroom, and Gonzales finally turned out the light and tried to go to sleep. Abeyta turned on the light, Gonzales left the bedroom, and Abeyta followed her. Gonzales asked Abeyta to return the apartment key she had given him, at which point Abeyta again accused Gonzales of cheating on him. Gonzales claims that Abeyta then threw a medium-sized candle at her that missed her, but left a hole in the wall.

[¶7] Gonzales testified that she then ran into the bedroom to phone for help and Abeyta followed her. According to Gonzales, Abeyta pulled her hair, pushed her onto the bed, and tore the telephone cord out of the wall. Gonzales claims she screamed for her neighbor to help her, and Abeyta then struck her in the mouth causing her hearing aid to fall out and her glasses to fall off. Gonzales stated she ran into the kitchen and began pounding on the common wall to alert her neighbor that she needed help. Abeyta allegedly grabbed Gonzales and pulled her hair. Gonzales tried to reach the telephone in the living room, but she testified that Abeyta pulled the cord from the telephone. Gonzales claims she ran into the bedroom and Abeyta followed. Abeyta put his hand over Gonzales mouth to keep her from screaming for her neighbor. Gonzales stated that she decided to lie quietly and wait for Abeyta to leave. After he left, Gonzales ran to her neighbor and asked him to call the police, which he had already done. Gonzales curled up into a fetal position next to her neighbor's door and waited for police to arrive. The police subsequently apprehended Abeyta approximately five blocks from Gonzales' apartment.

[T8] A jury found Abeyta guilty of battery and made a special finding that he and Gonzales were household members. At Abeyta's request, the district court sentenced him in absentia and this appeal followed.

DISCUSSION

Ric#ut to REmamN SLENT

[¶9] Abeyta argues that at trial, during direct examination of Police Officer DaFoe, the prosecutor elicited an improper comment regarding Abeyta's silence at the detention center while he was being informed of the charges against him. Officer DaFoe testified that he was filling out forms in Abeyta's presence when Abeyta asked him why he had been arrested. During examination of Officer DaFoe, the following exchange occurred:

[PROSECUTOR:] So as you were filling this out I take it is when he asked the question, what am I arrested for?
[OFFICER:] Correct.
[PROSECUTOR:] You advised him what?
[OFFICER:] Family violence assault.
[PROSECUTOR:] Any response?
[OFFICER:] He didn't respond at all. As a matter of fact, he changed the subject and started talking to Officer Wood again.

[¥101 In the instant case, defense counsel did not object to these alleged comments at trial, and therefore on appeal, we apply the plain error standard. Accordingly, Abeyta must show that the record clearly reflects an error that transgressed a clear and unequivocal rule of law and that such error materially prejudiced a substantial right. Dysthe v. State, 2008 WY 20, ¶ 23, 63 P.3d 875, 884 (Wyo.2003) (quoting Mazurek v. State, 10 P.3d 531, 585 (Wyo.2000)).

[T11] Abeyta argues in his appellate brief that this questioning "was an obvious attempt by the prosecutor to elicit testimony suggesting ... Abeyta's silence was proof of guilt." Citing Tortolito v. State, 901 P.2d 387 (Wyo.1995), Abeyta contends that the prosecutor's conduct was improper and his convietion must be reversed. In Tortolito, 901 P.2d at 390, we stated that pursuant to Wyo. Const. art. 1, § 11, an individual's "constitutional right to silence exists at all times-before arrest, at arrest, and after arrest; before a Miranda warning and after it. The right is self-executing." We further concelud-ed that:

Prosecutorial violations are subject to the Clenin [v. State, 5783 P.2d 844 (Wyo. 1978) ] rule's mandate that failure to respect the constitutional right of the citizen-accused not to have his silence called to the jury's attention will entitle the accused to a reversal of conviction. Westmark v. State, 693 P.2d 220, 221-22 (Wyo.1984), citing Clenin. A reference to silence which is not a "comment" will not be reversed absent a showing of prejudice. Parkhurst v. State, 628 P.2d 1869, 1882 (Wyo.1981).
A comment upon an accused's silence occurs when used to the state's advantage either as substantive evidence of guilt or to suggest to the jury that the silence was an admission of guilt.

Tortolito, 901 P.2d at 390-91.

[112] In right-to-silence cases, we evaluate " 'the entire context in which the statements were made' and we will 'not take sentences and phrases out of context. Spinner v. State, 2008 WY 106, 119, 75 P.3d 1016, 1024 (Wyo.2003) (quoting Robinson v. State, 11 P.3d 361, 378 (Wyo.2000), cert. denied, 532 U.S. 980, 121 S.Ct. 1620, 149 LEd.2d 488 (2001). We also consider " 'whether the prosecutor asked improper questions, whether he emphasized or followed up on the silence issue, and whether he attempted to exploit the issue in any way.' " Spinner, 2003 WY 106, ¶ 19, 75 P.3d at 1024 (quoting Lancaster v. State, 2002 WY 45, ¶ 39, 43 P.3d 80, 96 (Wyo.2002)).

[¶13] In Tortolito, the victim and a bus driver told police that Tortolito had committed a robbery. Following these accusations, officers detained and interrogated Tortolito. Tortolito "remained silent" in the face of the accusations. Tortolito, 901 P.2d at 388. In direct examination of the officers, the prosecutor elicited numerous statements about Tortolito's failure to respond to the allegations, and in closing argument, the prosecutor characterized Tortolito's silence as an admission of guilt, which we found to be reversible error. Tortolito, 901 P.2d at 390-91. Unlike the prosecutor in Tortolito, the prosecutor in the instant case did not emphasize or follow up on the silence issue.

[¶ 14] We find the instant case more analogous to Lancaster, where an officer testified on direct examination that, when he began to ask Lancaster questions, "he ignored me or at least I felt he ignored me. He didn't respond to me at all." Lancaster, 2002 WY 45, 183, 48 P.3d at 94. In Lancaster we found that, "unlike in Tortolito, the prosecutor did not mention in opening or argue in closing that the appellant's silence somehow proved guilt." Id., 2002 WY 45, 187, 48 P.3d at 96. We concluded that:

A prosecutor does not "comment" on a defendant's exercise of his right to silence where he does not attempt to use the silence to the state's advantage, where he does not argue to the jury that the silence was evidence of guilt or an admission of guilt, and where the defendant does not show any prejudice. Shipman [v. State], 2001 WY 11 24, 17 P.3d [84] at 89 [(Wyo. 2001)]. Material prejudice is shown only where there is a reasonable possibility that the verdict would have been more favorable to the defendant if the evidence or prosecutorial comment had not been allowed. Emerson [v. State], 988 P.2d [518] at 522 [(Wyo.1999)1].

Lancaster, 2002 WY 45, 139, 48 P.8d at 96.

[¶15] In the instant case, the prosecutor asked only one question concerning whether Abeyta responded when told why he had been arrested. The prosecutor did not attempt to use Abeyta's silence to the State's advantage and did not argue to the jury that Abeyta's silence was evidence of or an admission of guilt. In addition, Abeyta does not attempt to show that he was materially prejudiced from the question and response. We conclude that Abeyta has failed to demonstrate any error that transgressed a clear and unequivocal rule of law that adversely affected a substantial right.

Jury Function UsurPED

[¶16] Abeyta next claims that the prosecutor elicited comments from Officer Alpizar that usurped the jury's function of determining his guilt or innocence. Abeyta contends that Officer Alpizar testified that he had reasonable suspicion to stop Abeyta because of Abeyta's actions and expressed the opinion that innocent people do not run from police. Abeyta argues that such testimony suggested he was guilty because he ran from Officer Alpizar.

[¶17] Officer Alpizar testified that he was on patrol driving east on Linecolnway, at about the 2200 block, when he received a radio call to locate an Hispanic male wearing a white t-shirt and blue jeans. The suspect had left a crime scene somewhere in the 2500 block of East Ninth. The officer saw a man matching this description running across Lin-colnway and followed him. As soon as the man saw the police car, he ran away.

[¶18] On direct examination of the officer, the following dialogue took place:

[PROSECUTOR:] You said he tried to hide from you. How did he do that?
[OFFICER:] He turned his head and saw the patrol vehicle. At that time rather than stopping he continued to run and went around, if I may, around the wall and hid behind the wall by the entrance at Taco Bell.
[PROSECUTOR:] What did you do?
[OFFICER:] I stopped the vehicle as soon as I had visual of this person. I got out of the patrol vehicle and I said, Police, stop. I then said, Please come out, I need to have a word with you. The gentlemen looked out, saw me, but he refused to move. Once again I said, I need to have a word with you. At that time by then I had enough probable cause-I'm sorry-1I had enough reasonable suspicion to believe that this person may be the person that the attempt to locate was referring to on the radio.
[PROSECUTOR:] What made you draw that conclusion I guess? Why?
[OFFICER:] I drew my conclusion based not only on his appearance, which matched the description on the attempt to locate, but his actions. Any other person wouldn't have run from the police. They would have stopped. Most people are very helpful. They tend to want to stop and talk to police officers and find out if there is anything they can do to assist. Rather this person [ran] away from the police vehicle at first. Then onee I verbalized my command, he refused to comply.

[¶19] Abeyta concedes that this line of questioning was not necessarily improper had the officer merely stated that Abeyta's actions made him believe they found the right person. However, he contends that the officer's recitation of how to view the evidence was improper.

[120] Since defense counsel did not object to this line of questioning at trial, we again apply the plain error standard. Abey-ta asserts in his appellate brief that plain error has been proved because the "record is clear that the prosecutor elicited improper opinion testimony that ... Abeyta must be guilty because of his actions.... Abeyta has been prejudiced by both [of] the comment{s] because it is the jury's function to determine if ... Abeyta is guilty. Plain error has been proven."

[¶21] To support his assertion, Abeyta relies on Lancaster, 2002 WY 45, 148, 48

P.3d at 99 (quoting Huff v. State, 992 P.2d 1071, 1079 (Wyo0.1999)):

"This Court has consistently recognized that it is the jury's duty to resolve the factual issues, judge the eredibility of the witnesses, and determine the guilt or innocence of a criminal defendant. ..."
... "Like opinions as to guilt, opinions as to the veracity, or lack thereof, of the victim or defendant are fundamentally objectionable if those opinions have the capacity to decide the case for the jury." Curl [v. State], 898 P.2d [869] at 374 [(Wyo.1995)] (emphasis in original).

See also Bennett v. State, 794 P.2d 879, 882-83 (Wyo.1990) and Stephens v. State, 774 P.2d 60, 66-67 (Wyo.1989) (where this Court condemned eliciting opinion testimony).

[122] We presume prejudice when the prosecutor elicits an express opinion as to the guilt of the defendant. Taylor v. State, 2001 WY 18, T21, 17 P.3d 715, 722 (Wyo0.2001). In the instant case, the prosecutor did not elicit an express opinion as to Abeyta's guilt. He asked the officer why he had concluded that he had reasonable suspi-clon to believe that Abeyta was the person to whom the attempt-to-locate call was referring. The officer did not directly express an opinion that "innocent people do not run." Instead, the officer testified that his decision to stop Abeyta was based on Abeyta's appearance and actions. The officer's testimony explained his decision to apprehend the suspect and was not a direct comment on Abeyta's guilt or innocence. We conclude that Abeyta has not met his burden of establishing plain error because he has not demonstrated that a clear and unequivocal rule of law was violated or that any substantial right was prejudiced thereby. Nevertheless, we caution prosecutors that questioning along these lines is fraught with danger and should be avoided unless directed at a particular fact at issue. Poorly disguised questions aimed at eliciting opinions as to guilt are no more acceptable than direct questions posed for the same purpose.

Waryer or Ricuts

[123] Abeyta attempted to waive not only a pre-sentence investigation (PST) report, but also attempted to waive his right to be present at sentencing. On the day of sentencing, Abeyta's counsel filed a document entitled "Defendant's Waiver of PSI and Right to be Present at Sentencing." However, a person charged with a felony in Wyoming may not waive the PSI report; at most, with the parties' consent, a court may permit the report to be filed after sentencing. W.R.Cr.P. 82(a)(1); Reyna v. State, 2001 WY 105, ¶ 16, 38 P.3d 1129, 1184 (Wyo.2001) (PSI cannot be waived by plea agreement for any felony).

[124] In addition, a defendant in a felony case "shall" be present "at the imposition of sentence...." W.R.Cr.P. 48 provides:

(a) Presence required.-The defendant shall be present at the initial appearance at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by this rule.
(b) Continued presence not required.The further progress of the trial to and including the return of the verdiet shall not be prevented and the defendant shall be considered to have waived the right to be present whenever a defendant, initially present:
(1) Is voluntarily absent after the trial has commenced (whether or not the defendant has been informed by the court of the obligation to remain during the trial); or
(2) After being warned by the court that disruptive conduct will cause the removal of the defendant from the courtroom, persists in conduct which is such as to justify exclusion from the courtroom.
(c) Presence not required. -A defendant need not be present in the following situations:
(1) A corporation may appear by counsel for all purposes;
(2) In prosecutions for offenses punishable by fine or by imprisonment for not more than one year or both, the court, with the written consent of the defendant, may permit arraignment, plea, trial, and imposition of sentence in the defendant's absence;
(3) At a conference or argument upon a question of law; and
(4) At a reduction of sentence under Rule 35.

See also Wyo. Stat. Ann. § 7-11-202 (Lexis-Nexis 2003) The rule generally incorporates the constitutional guarantees associated with a defendant's "right to be present during every stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the proceeding." Seeley v. State, 959 P.2d 170, 177 (Wyo.1998).

[125] None of the rule's listed exceptions, including those implicating a defendant's waiver of his presence at sentencing, apply to the circumstances of the instant case. Subsection (b) only applies to trial proceedings "to and including the return of the verdict. ..." Subsection (c)(2) specifically applies to misdemeanor cases, evincing an intent that subsection (a) is mandatory regarding a defendant's presence at sentencing in a felony case. See, for example, United States v. Songer, 842 F.2d 240, 243-44 (10th Cir.1988) and State v. Koopmans, 210 Wis.2d 670, 563 N.W.2d 528, 532-33 (1997). Accordingly, we will vacate Abeyta's sentence and remand to the district court for resentencing. See Songer, 842 F.2d at 244 and Koopmans, 563 N.W.2d at 533. We find federal authority persuasive in concluding that W.R.Cr.P. 48 "vindicates a central principle of the erimi-nal justice system" concerning a defendant's presence at sentencing in a felony case; a violation of that particular principle is "per se prejudicial" and the "presence or absence of prejudice is not a factor in judging the violation." United States v. Torres-Palma, 290 F.3d 1244, 1248 (10th Cir.2002).

PriO® CONVICTIONS

[126] Abeyta argues that the State failed to provide any proof that he had been previously convicted of battery against a household member as required by Wyo. Stat. Ann. § 6-2-501(£)(i) to enhance his sentence to a felony. Given our disposition of the waiver issue, we need not reach the merits of this issue. However, we note that where prior convictions are alleged in order to seek enhancement of a sentence, two questions of fact are generally presented. The first is whether a pertinent prior judgment has been rendered, and the second is whether the person named in the prior judgment is the accused presently before the court. Chavez v. State, 604 P.2d 1341, 1350 (Wyo.1979), cert. denied, 446 U.S. 984, 100 S.Ct. 2967, 64 L.Ed.2d 841 (1980). See also Singer v. United States, 278 F. 415, 420 (C.C.A.3), cert. denied, 258 U.S. 620, 42 S.Ct. 272, 66 L.Ed. 795 (1922).

[T27] Prior convictions can be established through documentary evidence such as the admission of authenticated copies of prison records, admission of authenticated copies of judgments of conviction and sentence from courts in Wyoming or from courts in other states, by the admission and use of copies of certified prison fingerprint records, or by a defendant's admission of such convie-tions. Chavez, 604 P.2d at 1350; Waxler v. State, 67 Wyo. 396, 224 P.2d 514, 521 (1950). Evidence of identity can be in the form of admission or confession of the defendant, photographs, similar birth dates and places, similar social security numbers or other identification numbers, certified fingerprint cards from prior arrests testified to by a fingerprint classifier to be those of the defendant, testimony of a prison official relative to his records, or by any of the usual methods for determining identity. Chaves, 604 P.2d at 1351.

CONCLUSION

[¶28] Abeyta has failed to demonstrate prosecutorial misconduct. His conviction for battery against a household member is affirmed, but we remand to the district court for re-sentencing because Abeyta was not present at the sentencing hearing.

      . Wyo. Stat. Ann. § 35-21-102(a)(iv) (LexisNexis 2001) provides:
      "Household member" includes:
      (A) Persons married to each other;
      (B) Persons living with each other as if married;
      (C) Persons formerly married to each other;
      (D) Persons formerly living with each other as if married;
      (E) Parents and their adult children;
      (F) Other adults sharing common living quarters;
      (G) Persons who are the parents of a child but who are not living with each other; and
      (H) Persons who are in, or have been in, a dating relationship.

      . After the first abuse incident, Gonzales' neighbor suggested that if she were in need of help to bang on a common wall three or four times and he would phone for help.

      . Wyo. Const. art. 1, § 11 states, "[nlo person shall be compelled to testify against himself in » any criminal case. ...'

      . Wyo. Stat. Ann. § 7-11-202 provides:
      Except as otherwise provided by this section, the defendant shall be present at the arraignment, at every stage of the trial, including the impaneling of the jury, and the return of the verdict and at the imposition of sentence. In prosecution for offenses not punishable by death, the defendant's voluntary absence after the trial has been commenced in his presence shall not prevent continuing the trial to and including the return of the verdict. A corporation may appear by counsel for all purposes. In prosecutions of all misdemeanor cases, the court, with the written consent of the defendant, may permit arraignment, plea, and imposition of sentence in a defendant's absence. The defendant's presence is not required at a reduction of sentence hearing.


author: LEHMAN, Justice. GOLDEN, J.,

text:
    2003 WY 137.
    Ronald Howard BYRD, Appellant (Defendant), v. Linda Lee MAHAFFEY, f/k/a Linda Lee Byrd, Appellee (Plaintiff).
    No. 02-261.
    Supreme Court of Wyoming.
    Oct. 29, 2003.

      Representing Appellant: Mike Cornia, Ev-anston, WY.
    Representing Appellee: Stan Decker Cannon of Greenhalgh, Beckwith, Lemich, Stith & Cannon, P.C., Rock Springs, WY.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   LEHMAN, Justice.

[¶1] Ronald Howard Byrd appeals the district court's decision allowing his counsel of record to withdraw from representing him prior to trial. Byrd also contests the district court's subsequent refusal to grant him a continuance of the trial date. Upon review, we affirm. '

ISSUES

[¶2] Byrd sets forth the following iésues on appeal:

I. Did the trial court commit reversible error when it allowed appellant's counsel to withdraw eight (8) business days before trial?
II. Did the trial court's denial of appellant's motion for continuance to obtain new counsel after the court had allowed counsel to withdraw shortly before trial require reversal?

Appellee Linda Lee Mahaffey, formerly known as Linda Lee Byrd, phrases the issues as:

1. Whether Appellant is estopped from raising issues on appeal that were not preserved in the district court by proper objection or exeeption.
2. Whether the district court committed reversible error in granting the motion for Appellant's counsel to withdraw.
3. Whether the district court committed reversible error in denying Appellant's motion for a continuance.
4. Whether Appellee's substitute Statement of the Evidence, which was adopted by the district court, was timely filed.

FACTS

[¶3] A Complaint for Divorce was filed by Mahaffey on May 2, 2001, with Byrd answering the complaint on June 4, 2001. On June 25, 2001, the district court scheduled trial for November 27, 2001. This date was vacated by order of the district court based on a joint motion filed by the parties due to the death of Byrd's father. On January 7, 2002, the district court rescheduled the trial date for May 16, 2002.

[¶4] On April 26, 2002, counsel for Byrd filed a motion to withdraw. A hearing on this motion was scheduled for May 3, 2002. Byrd, however, did not appear. Ultimately, the district court granted the motion to withdraw. On May 14, 2002, Byrd filed a motion to continue trial. The motion was denied, and trial commenced on May 16, 2002, culminating with the district court granting the divorce and dividing the subject marital property. This appeal followed.

STANDARD OF REVIEW

[¶5] In Honan v. Honan, 809 P.2d 783, 786-87 (Wyo.1991), we recognized:

The district court has the authority to control the course of a litigation. That power includes the discretion to grant continuances, either upon its own motion or upon a motion by one of the parties, and to grant an attorney's request to withdraw. Bromley v. Haberman, 588 P.2d 708 (Wyo. 1978); Wyo.Stat. § 1-9-102 (1988); Rules 102 and 201 of the Uniform Rules for the District Courts of the State of Wyoming. The district court must exercise its discretion in a way which promotes justice. See Bromiley, 588 P.2d 708.

(Emphasis added.) We have further indicated that issues concerning the withdrawal of counsel and continuances are matters that are left to the sound discretion of the trial court and will not be upset on appeal absent a demonstrated abuse of discretion. Bacon v. Carey Co., 669 P.2d 588, 584 (Wyo.1983). An abuse of discretion is found only when a court acts in a manner which exceeds the bounds of reason under the circumstances. The ultimate issue is whether the trial court could reasonably conclude as it did. The decision of the trial court will not be reversed absent proof of such abuse. Jensen v. Fremont Motors Cody, Inc., 2002 WY 173, ¶¶ 13-14, 58 P.3d 322, 1113-14 (Wyo.2002).

[¶6] We have also stated: In criminal cases, the withdrawal of counsel, particularly on the eve of trial, may implicate due-process considerations and defendant's right to effective assistance of counsel. Epperson v. State, Wyo., 637 P.2d 671 (1981); Adger v. State, Wyo., 584 P.2d 1056 (1978). However, in civil cases, withdrawal of counsel does not always provide grounds for the granting of a continuance. Annot., 48 A.L.R.2d 1155, 1157.

" 'The withdrawal, on the eve of trial, of the attorney for one of the parties to an action, leaving such party unprepared for trial, is not ipso facto a ground for continuance. . . .' " Benson v. Benson, 66 Nev. 94, 204 P.2d 816, 318 (1949).

Particularly relevant to the matters with which we are concerned in this appeal is this court's holding

"... that the trial court may deny a continuance if the problem which gives rise to the request for a continuance is the fault of the party moving for the continuance." Craver v. Craver, supra, 601 P.2d at 1000.

Bacon, 669 P.2d at 585.

[¶7] This court has further clarified:

The trial court has broad discretion in granting or denying of a motion for continuance; and, absent a manifest abuse of discretion, the reviewing court will not disturb such ruling. Craver v. Craver, Wyo., 601 P.2d 999 (1979); Holly Sugar Corp. v. Perez, Wyo., 508 P.2d 595 (1978). To find an abuse of discretion, the refusal must be so arbitrary as to deny appellant due process, and the burden rests upon appellant to prove actual prejudice and a violation of his rights. Bacon v. Carey Co., Wyo., 669 P.2d 588; State v. Spurlock, 161 Mont. 388, 506 P.2d 842 (1973).
On review we look at the peculiar circumstances of the case and the reasons presented to the trial judge at the time of the request. Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921, reh. denied 377 U.S. 925, 84 S.Ct. 1218, 12 L.Ed.2d 217 (1964).

Cates v. Eddy, 669 P.2d 912, 915-16 (Wyo. 1988).

[¶8] Finally, this court has declared:

Withdrawal of an attorney or his discharge in a civil case does not give a party an absolute right to a continuance. Grunewald v. Missouri Pacific Railroad Co., 331 F.2d 983 (8th Cir.1964). Even though the denial of the continuance may have seriously inconvenienced appellant, the situation was due to his own making and that is a factor to be considered.
Many jurisdictions weigh the appellant's right to counsel against the prompt administration of justice. Annmot., 78 A.L.R.3d 725. The trial court is better able to judge the matter, is more conversant with local conditions, status of the docket, and the capacity and disposition of counsel. It is more familiar with the background and general setting of the situation, which is frequently not embalmed in the formal ree-ord. Absent a clear abuse of judicial discretion, this court will not interfere. State v. Hathaway, 224 Iowa 478, 276 N.W. 207 (1987); see, Randolph v. Hays, Wyo., 665 P.2d 500 (1988).

Id. at 916.

DISCUSSION

Appealable Issues

[T9] Initially, Mahaffey contests that Byrd failed to raise to the district court the issues now presented because Byrd did not object to the district court's rulings. Thus, Mahaffey contends that Byrd is precluded from bringing these issues up on appeal.

[¶10] We have often expressed that issues raised for the first time on appeal generally will not be considered by this court unless they are jurisdictional or issues of such a fundamental nature that they must be considered. Joyner v. State, 2002 WY 174, ¶ 13, 58 P.3d 831, 118 (Wyo.2002); Robinson v. Pacificorp, 10 P.3d 1133, 1136 (Wyo.2000); WW Enterprises, Inc. v. City of Cheyenne, 956 P.2d 358, 356 (Wyo.1998). We have also made it clear that it is appropriate for us to address issues that are bound to emerge again if left unresolved. Joyner, at ¶ 13; Rocky Mountain Oil & Gas Ass'n v. State, 645 P.2d 1163, 1167 (Wyo.1982); McQuire v. McGuire, 608 P.2d 1278, 1286 (Wyo.1980).

[¶11] We find that it is important for this court to address the issues raised by Byrd on appeal 1) because they are fundamental in nature inasmuch as they concern specific due process questions, and 2) they are issues that continue to arise following the modification of Uniform Rules for District Courts of the State of Wyoming (U.R.D.C.), Rule 102(c) in 1998. Therefore, recognizing that special cireumstances exist, we choose to attend to the issues brought before this court on appeal, as most recently dictated in Joyner, at 13.

Withdrawal of Counsel

[112] In his first issue on appeal, Byrd complains that the district court committed reversible error when it allowed his counsel to withdraw eight business days before trial. Specifically, Byrd argues that the district court erred because no "extraordinary cireumstances" existed to allow withdrawal of counsel pursuant to U.R.D.C. 102(c). In addition, Byrd asserts that the case of Carlson v. Carlson, 836 P.2d 297, 802 (Wyo.1992) discloses this court's directive that the "better practice" is to require that counsel not be allowed to withdraw unless other counsel has made a written entry of appearance except in extraordinary cireum-stances.

[¶13] Uniform Rule for District Courts 102, in pertinent part, provides the following:

(a)(1) An attorney appears in a case:
(A) By attending any proceeding as counsel for any party;
(B) By permitting the attorney's name to appear on any pleadings or motions, except that an attorney who assisted in the preparation of a pleading and whose name appears on the pleading as having done so shall not be deemed to have entered an appearance in the matter; or
(C) By a written appearance. Except in a criminal case, a written entry of appearance may be limited, by its terms, to a particular proceeding or matter.
(2) Exeept as otherwise limited by a written entry of appearance, an appearing attorney shall be considered as representing the party or parties for whom the attorney appears for all purposes.
(c) Counsel will not be permitted to withdraw from a case except upon court order. Except in the case of extraordinary circumstances, the court shall condition withdrawal of counsel upon the substitution of other counsel by written appearance. In the alternative, the court shall allow withdrawal upon a statement submitted by the client acknowledging the withdrawal of counsel for the client, and stating a desire to proceed pro se. An attorney who has entered a limited appearance shall be deemed to have withdrawn when the attorney has fulfilled the duties of the limited entry of appearance.

(Emphasis added.) In Carlson, at 802, this court stated:

We review the record to determine whether the district court abused its discretion in refusing to set aside the default judgment entered against appellant. On January 31, 1991, the district court granted Mrs. Carlson's motion for a new trial on the first phase of the litigation between these parties. The notice of setting for the new trial was filed on March 183, 1991. Very shortly thereafter, on March 25, 1991, a consent to withdrawal of counsel which Carl had signed was filed with the district court. The district judge sent Carl a letter on March 25, 1991, which informed him that he should seek new counsel "as soon as possible" because "[this case has been lingering in court since 1986 and I intend to keep May 14, 1991, as the trial date."
The order permitting Carl's counsel to withdraw was filed on April 1, 1991, just a little over a month before the scheduled trial. The district court entered its order before replacement counsel had entered an appearance which is not a favored practice. Rule 102(c) of the Uniform Rules for the District Courts of the State of Wyoming provides "[clounsel will not be permitted to withdraw from a case except upon court order." In contrast, Rule 19.02 of the Wyoming Rules of Appellate Procedure provides attorney or firm who has appeared in a cause on appeal may withdraw from it without written consent of the court filed with the clerk. Such consent may be conditioned upon substitution of other counsel." The Uniform District Court Rules do not require that substitute counsel be obtained before the court allows withdrawal of an attorney. However, a better practice, and one that will avoid the difficulties here presented, would be to condition withdrawal on substitution of new counsel. This practice would avoid the waste of time and resources that may occur in a case such as this. Nevertheless, the order permitting withdrawal of appellant's attorney was permissible under the rules for district courts.

(Emphasis added.)

[¶14] Upon our review of Carlson, we acknowledge our recognition of "a better practice" and continue to support the proffered suggestion noted therein. However, we further recognize such suggestion is not mandatory, particularly when it is noted that our opinion in Carlson 1) was published prior to the 19983 enactment of the pertinent modified provisions of U.R.D.C. 102(c), and 2) acknowledges the clear applicability of that rule and the specific language utilized within the rule. As provided by the modified rule and our statements in Carlson, the district court merely had to condition withdrawal of counsel upon the substitution of other counsel by written appearance unless extraordinary circumstances existed. Thus, we must review this action to determine if "extraordinary cireumstances" existed whereby the district court could allow the withdrawal of counsel without the condition of a written substitution of other counsel.

[¶15] Counsel for Byrd conditioned his request for withdrawal on specific facts. These facts included Byrd's refusal to keep appointments and return telephone messages after Byrd had authorized his counsel to enter into an agreement. In addition, Byrd declined to execute through his counsel the deed that was subject to the earlier agreement, and such deed was only eventually executed by Byrd through the efforts of Ma-haffey. As such, with counsel recognizing that trial was set in the matter for May 16, 2002, counsel concluded that, given Byrd's unwillingness to communicate with him and Byrd's direct dealings with Mahaffey, counsel could not appropriately prepare for trial and protect Byrd's interests.

[¶16] Further, although no transcripts were made of the proceedings in this case, the record does reflect that Byrd failed to reasonably cooperate and obstructed the orderly progression of this case, which placed his counsel in a very difficult position. Indeed, although the district court entered an order for temporary spousal support, Byrd refused to make payments to Mahaffey as required under that order. Byrd did not cooperate with discovery requests, requiring a motion to compel to be filed by Mahaffey and forcing Mahaffey to attempt to obtain some of the requested documentation through a third party. After the district court entered a stipulated order to execute a quitclaim deed concerning the primary marital real estate property resolving the temporary spousal support issues, Byrd delayed execution of the deed. Therefore, it becomes apparent that Byrd, by his own actions, contributed to his counsel's request to withdraw.

[117] Mahaffey also accurately points out that counsel for Byrd may have been somewhat restrained by Wyoming Rule of Professional Conduct 1.16 from fully expressing to the district court each of the actual reasons for counsel's requested withdrawal. Under that rule, while an attorney must obtain a court order allowing withdrawal after appearing in an action and support such request with an adequate basis, counsel must also be careful to keep confidential certain facts and not disclose facts that might prejudice the court against his client. Thus, an artful balance between confidentiality and providing an adequate basis for withdrawal must be obtained by counsel requesting to withdraw. A lawyer's general statements that professional considerations require termination of the representation ordinarily should be accepted by the court as sufficient. See Wyoming Rule of Professional Conduct 1.16, emt. 8.

[¶18] Additionally, this matter was initiated on May 2, 2001. On June 25, 2001, trial was initially scheduled for November 27, 2001. This date was then vacated by order based on a joint motion filed by the parties due to the death of Byrd's father. On January 7, 2002, the district court rescheduled the trial date for May 16, 2002. Hence, this matter had been pending for over one year in the district court at the time that trial was actually held.

[¶19] Under these facts, we cannot conclude that the situation did not constitute "extraordinary circumstances" as required under U.R.D.C. 102(c). Accordingly, we hold that the district court did not abuse its discretion in allowing Byrd's counsel to withdraw. As noted above, many jurisdictions including Wyoming consider the actions of the appellant, whether these actions contributed to the situation at hand, and weigh the appellant's right to counsel against the prompt administration of justice. It is also recognized that the trial court is better able to judge the matter, is more conversant with local conditions, the status of the docket, and the capacity and disposition of counsel, and is more familiar with the background and general setting of the situation, which is frequently not embalmed in the formal record. Cates v. Eddy, 669 P.2d at 915-16. Therefore, we grant the district court these same presumptions in this case.

[¶20] Additionally, Byrd complains that the district court order allowing his counsel to withdraw is based solely on expressions by the district court that "good cause" existed for entry of the order, which is different than the requisite finding of "extraordinary circumstances" called for by U.R.D.C. 102(c). Byrd also criticizes the district court for not particularly identifying its findings of fact and reasoning supporting its ruling allowing the withdrawal of Byrd's counsel. Nevertheless, we find upon review of the record, that the district court could have reasonably concluded that extraordinary cireuamstances existed to allow the requested withdrawal by Byrd's counsel.

[¥21] Byrd also infers that based upon his interpretation of our opinion in JAG v. State, Dep't of Family Servs., 2002 WY 158, ¶ 18, 56 P.3d 1016, ¶ 18 (Wyo.2002), it is incumbent upon the district court to ensure that the hearing on the motion to withdraw as counsel was reported. However, while a transcript of the proceedings may have proved helpful to this court in making its review, such a burden should not be placed upon the district court. Certainly, given the fact that Byrd believed he was prejudiced by the ruling allowing his counsel to withdraw, he could have arranged to bring such issues again before the district court for review having such proceedings recorded. Yet, Byrd failed to take such actions.

[¶22] Finally, Byrd argues that the reasoning utilized by this court in Honan, 809 P.2d at 787, must be applied in this case. In Honan, a wife filed for divorcee and requested a hearing to determine temporary support and alimony. The husband failed to appear at the hearing and later failed to abide by the court's rulings made at the hearing. At a later contempt proceeding, the husband's counsel was present, but the husband again failed to personally appear, leading to the issuance of a bench warrant. The husband also did not appear at the time of the scheduled trial and, when his counsel requested to withdraw, the court granted that request. The court then proceeded with trial in the absence of the husband. This court reversed the resultant judgment stating:

In this case, the husband suffered an injustice when the district court, in the husband's absence, allowed the attorney to withdraw because no one was present to represent the husband's interests. Those interests included an opportunity to challenge the contempt order and to make a formal request for a continuance. Thus, we hold that the district court abused its discretion when it permitted the husband's attorney to withdraw and then immediately proceeded with the trial in the absence of the husband. The husband is entitled to have a new trial after being given reasonable notice of the trial setting so that he may appear and defend through his attorney or pro se.

Honan, at T87.

[¶23] The cireumstances in this case are much different than those that existed in Honan; we, therefore, do not find the holding in that case to be dispositive. Here, Byrd was present to represent his own interests at trial and made a motion for continuance before the district court. Byrd was extended notice concerning his counsel's motion to withdraw. The withdrawal hearing was held days before the actual trial date, and Byrd was provided notice of the pending trial date many months in advance. Further, although the record before this court is limited, it does indicate that Byrd knew of his counsel's withdrawal prior to the trial date because he filed a motion for a continuance and appeared at trial with his file that he had obtained from his withdrawn counsel. Byrd was also allowed to participate in the trial representing his own interests after the district court denied his motion for continuance.

Denial of Continuance

[124] In his final issue on appeal, Byrd contends that the district court abused its discretion when it refused to grant his motion for continuance. Again, we do not agree. Byrd filed his pro se motion for continuance on or about May 14, 2002, approximately two days prior to the scheduled trial date. That motion stated that it was "based on the reason that the defendant has an appointment with Elizabeth Greenwood, new legal council [sic]." According to Byrd's own statement of the evidence filed with the district court, Byrd clarified at hearing that the reason for the continuance was not a conflict in the meeting with Ms. Greenwood and the trial. Rather, the continuance was requested because Byrd wished to pursue the possibility of hiring her to represent him in the matter. Therefore, it appears that Byrd misrepresented in his motion that Ms. Greenwood had already been retained. In addition, Byrd indicated that his motion was filed jointly by both parties when this was not the case. Also, as indicated previously, this matter had been pending for over one year in the district court at the time that trial was actually held. Byrd had been allowed at least five months prior notice of the date of trial before it actually commenced and was previously granted a continuance of the initial trial date based on a joint motion filed by the parties.

[¶25] Finally, Byrd argues that he is not to blame for his counsel's late withdrawal and, therefore, such occurrence should not be held against him. However, as recognized above, Byrd failed to keep appointments and return telephone messages left for Byrd by his counsel. In addition, Byrd delayed the execution of a deed which was part of an agreement reached through the efforts of counsel. Byrd further obstructed the orderly progression of this case. While the district court entered an order for temporary spousal support, Byrd did not make payments to Mahaffey as required. Byrd further did not cooperate with discovery requests requiring Mahaffey to file a motion to compel and employ other alternative methods to obtain some of the requested documentation.

[¶26] As admitted by Byrd in his own brief, this court has traditionally not favored those who have contributed to delay and caused the need for continuance by their own actions. See Inskeep v. Inskeep, 752 P.2d 434, 487 (Wyo.1988); Urich v. Fox, 687 P.2d 893, 894 (Wyo.1984), Sharp v. Sharp, 671 P.2d 317, 319 (Wyo.1983); Cates v. Eddy, 669 P.2d at 916; Teton v. Teton, 988 P.2d 1130, 1132 (Wyo.1997). In Sharp, at 319 (footnote omitted), we stated:

A. continuance will be granted only upon good cause and a court will deny a continuance where the problem which gives rise to the request is the fault of the movant. We said as much in Craver v. Craver, [601 P.2d 999 (Wyo.1979)] at 1000, where it was held:
"... that the trial court may deny a continuance if the problem which gives rise to the request for a continuance is the fault of the party moving for the continuance."

Likewise, in Inskeep, at 437, we declared:

We have consistently held that the granting or denying of a continuance is within the sound discretion of the trial court and is considered according to the cireumstances unique to the case. Shanor v. Engineering, Inc. of Wyoming, Wyo., 705 P.2d 858 (1985); Smith v. Smith, Wyo., 704 P.2d 1319 (1985). Under § 1-9-102, W.S.1977, a court may grant a continuance "for good cause shown." Alternatively, a continuance may not properly be granted based upon the mere whim, request or convenience of counsel, and absent a substantial factual or legal reason for doing so. Smith v. Smith, supra; Tomash v. Evans, Wyo., 704 P.2d 1296 (1985). We have additionally held that a continuance may be denied by the trial court if the need for the continuance is caused by the movant. Carlson v. BMW Industrial Service, Inc., Wyo., 744 P.2d 1383 (1987).

CONCLUSION

[¶27] Given those reasons set forth above, the actions of the district court are affirmed.

GOLDEN, J.,

specially concurring.

[¶28] I would summarily affirm. The circumstances of this case do not indicate that Byrd's due process rights were ever threatened to the point of requiring this Court to consider the issues herein raised by Byrd when he never objected to the procedure below. Byrd's attempt to "play the system" failed, and this Court should not entertain his objections to cireumstances he created.

[¶29] Further, I see no reason for this Court to engage in an advisory opinion regarding U.R.D.C. 102(c). Since the majority opinion has done so, however, I am compelled to comment. An uncooperative client may create grounds to support an attorney's withdrawing his representation of that client. But, by itself, the fact that a client is uncooperative is not enough to constitute an "extraordinary cireumstance" as required by the rule. Without an "extraordinary circumstance," the trial court is without discretion to accept the withdrawal of an attorney of record without substitute counsel being in place, or at least acknowledgement from the client. The language of U.R.D.C. 102(c) is clearly mandatory in this regard.

[¶30] As the majority opinion emphasizes, this case had been pending for quite some time. The parties had at least four months notice of the final trial date. The client became uncooperative at some point early in the proceedings (appellee's brief suggests Byrd was uncooperative with his attorney from the beginning). Thus, Byrd's attorney had plenty of time to determine whether or not he wanted to continue to represent Byrd under the circumstances. While Byrd's uncooperativeness may have justified counsel's withdrawal, nothing in the record justifies counsel's withdrawal within two weeks of trial without providing some protection for his (ex)elient.

[¶31] I would hold that U.R.D.C. 102(c) was violated in this case. However, I would still affirm. Under the particular circumstances of this case, Byrd cannot prove that a substantial right was violated, and thus the error in violating the rule was harmless. W.R.A.P. 9.04.

      . No transcript was made of any proceedings including the trial and motions hearings. Therefore, the statement of facts herein is based on the court record.

      . Certainly, the enumeration of the specific findings of fact, reasoning, and conclusions of law made by a district court in support of its ruling is most welcome and sometimes even critical in this court's appellate review.


author: LEHMAN, Justice.

text:
    2003 WY 139
    DOUBLE EAGLE PETROLEUM & MINING CORPORATION, a Wyoming corporation; and Wind River Resources, Inc., a Wyoming Corporation, Appellants (Plaintiffs), v. QUESTAR EXPLORATION & PRODUCTION COMPANY, a Texas corporation; Wexpro Company, a Utah corporation; Lance Oil & Gas Company, Inc., a Delaware corporation; and Ultra Resources, Inc., a Wyoming corporation, Appellees (Defendants).
    No. 02-265.
    Supreme Court of Wyoming.
    Oct. 30, 2003.
    Representing Appellant: Mark W. Gifford and Craig, Newman, Casper, WY.
    Representing Appeliee: Mr. Thomas Reese of Brown, Drew & Massey, LLP, Cas-per, WY for Questar Exploration & Production Co. & Wexpro Co.; Mr. R. Michael Mullikin of Mullikin, Larson & Swift, Jackson, WY and Gary C. Davenport of McGloin, Davenport, Severson & Snow, Denver, CO for Lance Oil & Gas Co.; and Mr. Gerald Mason of Mason & Mason, P.C., Pinedale, WY and George W. Mueller of Burns, Wall, Smith & Mueller, P.C., Denver, CO for Ultra Resources.
    Before HILL, C.J., and GOLDEN, LEHMAN, and VOIGT, JJ., and BROOKS, D.J.
   LEHMAN, Justice.

[¶1] At issue in this case is the meaning and effect of two assignments of federal oil and gas leases. The assignments both carved out and reserved a 3.125 percent overriding royalty interest in the leases. At trial, the district court found that the assignments were ambiguous and, therefore, considered extrinsic evidence of the parties' intent when entering into the assignments. Ultimately, the district court found that the parties intended the 3.125 percent overriding royalty interest in the leases to be proportionately reduced to reflect that at the time the assignments were made the assignor was the owner of a 20 percent working interest in the leases. Thus, only a .625 percent overriding royalty interest in the leases was effectively assigned. We affirm.

ISSUES

[¶2] Appellants, Double Eagle Petroleum & Mining Corporation and Wind River Resources, Inc., set forth the following issues:

1. Is there any ambiguity in written assignments of oil and gas leases that reserve to the assignor a "3-1/8% of 8/8ths" overriding royalty interest?
2. Under the doctrine of merger, was it error for the trial court to use a collateral agreement to structure an ambiguity in the written assignments?
8. Did the trial court err when it utilized expert testimony to structure an ambiguity in the written assignments?
4. Did the trial court err when it gleaned the parties' intent from documents generated years after the written assignments?
5. Did the trial court err when, in the absence of any claim under the Wyoming Recording Act, it found that Appellants had notice of title problems regarding the overriding royalty interests at issue?

FACTS AND HISTORICAL BACKGROUND

[T3] Prior to 1978, Hondo Oil and Gas Company (Hondo) became the owner of a 20 percent carried working interest in the subject oil and gas leases. In 1978, Hondo and EI Paso Natural Gas Company (El Paso) entered into an agreement which in part conveyed the involved leases but reserved to Hondo certain overriding royalty interests. Pursuant to the 1978 agreement, Hondo provided separate assignments for each lease at issue. These assignments on Bureau of Land Management forms state that Hondo, "as owner of 20 percent of record title" in each lease, "hereby transfers and assigns" to El Paso its interests in the leases, reserving to Hondo an overriding royalty of "3 1/8% of 8/8ths."

[¶4] In 1980, a Unit Agreement for the development and operation of the Mesa Unit, which encompasses the lands described in the leases, was executed naming Mountain Fuel Supply Company (Mountain Fuel) as operator. Mountain Fuel then changed its name to Wexpro Company (Wexpro). Hondo was then merged into its parent company, Atlantic Richfield Company (ARCO). In 1991, Double Eagle Petroleum & Mining Corporation (Double Eagle) acquired an assignment from ARCO of its interest in the leases. In 1997, Double Eagle conveyed one-half of its interest in the leases to Wind River Resources, Inc. (Wind River)

[T5] A dispute then arose between appellants and Wexpro as to the amount of overriding royalty interest in the leases held by appellants, which resulted in the instant litigation being filed. Upon trial concerning solely those claims involving declaratory relief, the district court ruled that appellants' overriding royalty interest in the leases was proportionally reduced to .625 percent by the 20 percent interest out of which it was created. This appeal followed.

STANDARD OF REVIEW

[¶6] After trial, the district court issued specific findings of fact and conclusions of law. In Ahearn v. Hollon, 2002 WY 125, 115, 53 P.3d 87, ¶15 (Wyo.2002) (quoting Hutchings v. Krachun, 2002 WY 98, ¶ 10, 49 P.3d 176, 110 (Wyo.2002)), this court reiterated our applicable standard of review:

The purpose of specific findings of fact is to inform the appellate court of the underlying facts supporting the trial court's conclusions of law and disposition of the issues. Hopper v. All Pet Animal Clinic, Inc., 861 P.2d 581, 588 (Wyo.1998). While the findings of fact made by a trial court are presumptively correct, we examine all of the properly admissible evidence in the record. Because this court does not weigh the evidence de novo, findings may not be set aside because we would have reached a different result. Rather, the appellant has the burden of persuading the appellate court that the finding is erroneous. Id. See also Maycock v. Maycock, 2001 WY 108, ¶11, 383 P.3d 1114, ¶ 11 (Wyo.2001). Findings of fact are not set aside unless inconsistent with the evidence, clearly erroneous, or contrary to the great weight of the evidence. The definitive test of when a finding of fact is clearly erroneous is when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. A determination that a finding is against the great weight of the evidence means that a finding will be set aside even if supported by substantial evidence. Id. See also Mathis v. Wendling, 962 P.2d 160, 168 (Wyo.1998). Conclusions of law made by the trial court are not binding on this court and are reviewed de novo. Maycock, % 12.

[¶ 7] We have also stated:

In contract litigation, when the terms of the agreement are unambiguous, the interpretation is a question of law.... Examination Management Services, Inc. v. Kirschbaum, 927 P.2d 686, 689 (Wyo.1996); Union Pacific Resources Co. v. Texaco, Inc., 882 P.2d 212, 218-19 (Wyo.1994). Whether a contract is ambiguous is a question of law for the reviewing court. Prudential Preferred Properties v. J and J Ventures, Inc., 859 P.2d 1267, 1271 (Wyo. 1993). We review questions of law de novo without affording deference to the decision of the district court. Hermreck v. United Parcel Service, Inc., 938 P.2d 863, 866 (Wyo.1997); Griess v. Office of the Atty. Gen., Div. of Criminal Investigation, 982 P.2d 734, 736 (Wyo.1997).
According to our established standards for interpretation of contracts, the words used in the contract are afforded the plain meaning that a reasonable person would give to them. Doctors' Co. v. Insurance Corp. of America, 864 P.2d 1018, 1023 (Wyo.1993). When the provisions in the contract are clear and unambiguous, the court looks only to the "four corners" of the document in arriving at the intent of the parties. Union Pacific Resources Co., 882 P.2d at 220; Prudential Preferred Properties, 859 P.2d at 1271. In the absence of any ambiguity, the contract will be enforced according to its terms because no construction is appropriate. Sinclair Oil Corp. v. Republic Ins. Co., 929 P.2d 535, 539 (Wyo.1996); Prudential Preferred Properties, 859 P.2d at 1271.

Amoco Prod. Co. v. EM Nominee Partnership Co., 2 P.3d 534, 540 (Wyo.2000).

[¶8] We add this supplementation of that standard of review:

Our primary focus in construing or interpreting a contract is to determine the parties' intent, and our initial inquiry centers on whether the language of the contract is clear and unambiguous. If the language of the contract is clear and unambiguous, then we secure the parties' intent from the words of the agreement as they are expressed within the four corners of the contract. Common sense and good faith are leading precepts of contract construction, and the interpretation and construction of contracts is a matter of law for the courts. Reed, 110, 18 P.3d 1161. We have also recognized that the language of a contract is to be construed within the context in which it was written, and the court may look to the surrounding circumstances, the subject matter, and the purpose of the contract to ascertain the intent of the parties at the time the agreement was made. Polo Ranch Company v. City of Cheyenne, 969 P.2d 132, 136 (Wyo.1998).
Williams Gas Processing-Wamsutter Company v. Union Pacific Resources Company, 2001 WY 57, ¶ 12, 25 P.3d 1064, ¶12 (Wyo.2001); also see Boley v. Greenough, 2001 WY 47, ¶ 11, 22 P.3d 854, ¶ 11 (Wyo.2001) ("In interpreting unambiguous contracts involving mineral interests, we have consistently looked to surrounding cireumstances, facts showing the relations of the parties, the subject matter of the contract, and the apparent purpose of making the contract."); and Newman v. RAG Wyoming Land Company, 2002 WY 132, ¶¶ 11-12, 53 P.3d 540, ¶¶ 11-12 (Wyo. 2002).
However, if the meaning of a contract is ambiguous or not apparent, it may be nee-essary to use evidence in addition to the contract itself in order to determine the intention of the parties. In such instances, interpretation of the contract becomes a mixed question of law and fact. Wilder v. Cody Country Chamber of Commerce, 868 P.2d 211, 216 (Wyo.1994); Alexander v. Phillips Oil Company, 707 P.2d 1385, 1387 (Wyo.1985):
If the contract is ambiguous, the intent of the parties may be determined by resort to extrinsic evidence. Rouse, 658 P.2d at 78; Mountain Fuel Supply Co. v. Central Engineering & Equipment Co., 611 P.2d 8638 (Wyo.1980). An ambiguous contract is one "which is ob-seure in its meaning because of indefiniteness of expression or because of a double meaning being present." Farr, 746 P.2d at 433. See also Bulis, 565 P.2d at 490. The existence of ambiguity is a question of law. Hensley v. Williams, 726 P.2d 90 (Wyo.1986); Amoco Production Co., 612 P.2d at 465.
True Oil Company v. Sinclair Oil Corporation, 771 P.2d 781, 790 (Wyo.1989).

Wadi Petroleum, Inc. v. Ultra Resources, Inc., 2003 WY 41, ¶¶ 11-12, 65 P.3d 703, ¶¶ 11-12 (Wyo.2003).

DISCUSSION

[¶9] The crux of appellants' argument is that the district court erroneously concluded that the two subject assignments of federal gas leases were ambiguous and then improperly utilized extrinsic evidence to determine the intent of the parties in interpreting those assignments. Specifically, appellants assert: 1) the assignments are clear and unambiguous, making it unnecessary to resort to extrinsic evidence in interpreting them, 2) under the doctrine of merger, it was error to use a collateral agreement to structure an ambiguity in the assignments, 3) utilizing expert testimony to structure an ambiguity in the assignments was improper, 4) gleaning the parties' intent from documents generated years after the assignments was incorrect, and 5) in the absence of any claim under the Wyoming Recording Act, it was inappropriate to find that appellants had notice of title problems regarding the overriding royalty interests at issue.

[¶10] Both the factual and legal issues presented to this court in the case of Wad Petroleum, 2008 WY 41, 65 P.3d 7083, are similar to this case. In Wadi, Wadi purchased the same disputed overriding royalty interests in two of the same six oil and gas leases at issue in this case. In addition, the assignments in this case are the same assignments involved in Wadi involving the same leases and lands. In Wadi, this court held that the district court was correct, as a matter of law, in determining that the disputed assignments were ambiguous and that, because the assignments were ambiguous, the district court properly examined extrinsic evidence in order to resolve the ambiguity.

[¶11] In rendering that holding, this court said at I1 13-14 (emphasis added):

In his treatise on oil and gas law, Richard Hemingway includes this discussion which is especially apropos to the issue we must resolve in this case:
(A) Definition of Fraction
As in the case of all interests carved out of the lessee's interest, care must be used in defining the fraction or quantum interest. Pure Oil Co. assigns to A an overriding royalty of 1/16. Consider the following statements of interest:
(a) 1/16 out of the lessee's 7/8 interest;
(b) 1/16 out of 7/8;
(c) 1/16 out of 7/8 working interest;
(d) 1/16 out of 7/8 leasehold.
In each instance the statement of the interest is ambiguous. In all four cases the interest is susceptible of two constructions: (1) that the interest is a full 1/16 interest (or §/128) and is merely payable out of the lessee's interest; or (2) that the quantum of the interest is of the lessee's interest under the lease, and not of full production, ie., 1/16 x T/8 = 77/128. In both (c) and (d), an additional interpretation may be made that the interest is equal to 1/16 x T/8 x T/8 = 49/1008. This is due to the fact that the terms "working interest" and "leasehold estate" have a common meaning as the right to 7/8 of production. Since the fraction 7/8 and the particular phrase both appear in the clause it might be assumed by some that both be given effect. Therefore, it is necessary that the draftsman define the fraction precisely. If it is the intent that a full 1/16 interest be created the clause should read, "1/16 of 8/8 of production," or "1/16 of gross production." If the lesser interest, the phrase may read, "1/16 of 7/8 of &/8 of production," or "1/16 of 7/8 of gross production."
An additional problem will occur where the lease from which the non-cost-bearing interest is created does not cover the full interest in the minerals. In the above illustration assume that the lease of Pure Oil Company covers only a one-half interest in the minerals. Two constructional problems occur. The first is whether the proportionate reduction clause in the lease applies to reduce the overriding royalty or production payment in proportion to the interest under lease. However, by the lease terms the proportionate reduction clause applies only to interests created under the lease.
The second problem is just the converse of the first. Where the non-cost-bearing interest is created under the % interest lease of Pure above, will it be automatically reduced in amount, due to the drafting of the assignment? It is the normal practice to tie the non-cost-bearing interest to the lease from which it is created. In the above illustration Pure drafts the following clause:
"... an overriding royalty of 1/16 of 7/8 of 8/8 of all of the oil, gas and other minerals produced and saved under and by virtue of said lease."
Query: As the lease covers only half of the minerals, does the non-cost-bearing interest refer only to the half mineral interest under the lease? Under some authority it would seem that the answer is yes, and that the overriding royalty interest created is only a 1/82.
To protect against either undesired result a clause should be inserted into the instrument providing that the non-cost-bearing interest will or will not be reduced, regardless of the interest under lease. Also a further provision may be inserted to deal with the effect of failure of title to the lease interest:
"Although it is believed that the net mineral interest in the said lease owned by the Assignor amounts to not less than a 0.875000 working interest, if by reason of failure of title in whole or in part, or for any other reason, the net mineral leasehold interest actually acquired by Assignor in said lease should be less than the interests hereinbefore set forth, then the overriding royalty interest herein assigned to Assignee shall not be reduced in amount as hereinabove set forth."
Where it is desired that the overriding royalty be reduced the phrase may be changed to read, "then the overriding royalty interest herein assigned to As-signee shall bear its proportionate part of such loss and shall be reduced proportionately." Where a partial interest lease is assigned and it is desired that the interest not be reduced due to title loss, recitations in the above clause should be changed appropriately. [Footnote omitted.]
Richard W. Hemingway, Law of Oil and (Gas, § 9.9(A), at 685-637 (3rd ed.1991); also see 2 Howard R. Williams, Charles J. Meyers, Oil and Gas Low, § 4ll.1(c) and (d), at 808-18 (see esp. p. 812, "The assignment instrument may and should expressly provide for or against proportionate reduction.") (2002); 4 Howard R. Williams, Charles J. Meyers, Oil and Gas Low, § 686.2, at 482-457 (see esp. p. 447, "It would be preferable under such cireum-stances to treat the instrument as ambiguous and to admit parol evidence to assist the fact finder in resolving this ambiguity [where proportionate reduction clause is lacking].").
Relying on this authority, we hold that the district court correctly concluded that the reservations of the overriding royalty interests were ambiguous due to a lack of clarity and incompleteness of expression. Therefore, we need not directly respond to this argument. Because the assignments did not make that point clear, they were ambiguous and it was necessary for the district court to consider extrinsic evidence, which properly included the opinions of experts in oil and gas law, in order to resolve the ambiguity which arose on the face of the assignments. The ambiguity was not structured by those opinions. They were merely used by the district court in resolving the preexisting ambiguity. This readily distinguishes this case from Amoco Production v. EM Nominee Partnership, 2 P.3d 534, 541 (Wyo.2000) wherein we held:
Nothing in the language of Article 11 of the Unit Agreement addresses the repayment of leasehold royalties previously paid. Its plain language is concerned only with the potential of retroactive adjustment of royalties for production that had occurred prior to the effective date of the revision of the participating area. Amoco's endeavor to invoke the testimony of experts with respect to industry custom and practice in applying this language inverts our rule with respect to extrinsic evidence. Instead of relying upon the extrinsic evidence to resolve an ambiguity, Amoco seeks to invoke the extrinsic evidence to structure an ambiguity. This would amount to this Court writing a new contract for the parties, and we are foreclosed from that endeavor. Union Pacific Resources Co., 882 P.2d at 220; Prudential Preferred Properties, 859 P.2d at 1271.
In the instant case the ambiguity is inherent in the assignments, and the extrinsic evidence is used only to assist the trial court in resolving the ambiguity.

Accordingly, relying on this same analysis, it was appropriate for the district court in this case to conclude that the assignments were ambiguous and that the utilization of extrinsic evidence including expert testimony was necessary to interpret the intent of the parties when entering into the assignments.

[¶12] This court further addressed the same merger issue asserted by appellants in this case in Wadi, at 115 (emphasis added), stating:

In this argument, Wadi asserts that ULtra and Questar promote a theory that the original assignments "imply" proportionate reduction, and that the silence of the 1978 agreement with respect to proportionate reduction also "implies" that proportionate reduction should apply. Relying in part on our decision in EM Nominee, Wadi contends that "silence" does not create ambiguity. Again, EM Nominee is distinguishable in this regard. The authorities we have cited and relied upon emphasize that in an instance such as this, silence leaves open the question of proportionate reduction, whereas that line of reasoning was not applicable to the "gilence" with which we were concerned in EM Nominee. In addition, Wadi recites this passage from 40 North Corporation v. Morrell, 964 P.2d 428, 426 (Wyo. 1998) to advance an argument that the relevant title documents "merged" so as to render them unambiguous:
40 North accepted a warranty deed to the property in exchange for a promissory note and mortgage. While the execu-tory contract for sale stated that the resulting mortgage would have a subordination clause, the final agreement did not include such a clause. At the time of delivery and acceptance of the deed, the executory contract for sale merged into the deed, mortgage and promissory note. 40 North can only assert breach of contract against the Morrells based upon the covenants in the deed, mortgage, and promissory note. Since there is no subordination clause in the mortgage, 40 North has no basis for asserting breach of contract.
Comparing the circumstances of the 40 North case to those of the instant case, we are simply unable to see the applicability of the "merger" theory propounded by Wadi.

[¶ 13] Finally, the court in Wadi, 1% 16-18 (emphasis added), addressed the utilization of other documents by the district court in rendering its ruling concerning the intent of the parties:

Wadi contends that the only documents that may be considered are the assignments themselves and the 1978 agreement. Wadi contends that the district court could not consider a March 15, 1984 Division Order, which indicated that Wadi's predecessors in interest, Hondo, owned a .625% ORRI. Wadi contends that use of a division order in such a fashion is prohibited by Wyo. Stat. Ann. § 80-5-805(a) (LexisNexis 2001):
§ 30-5-305. Collection; and remittance of royalties. reporting
(a) Unless otherwise expressly provided for by specific language in an executed written agreement, "royalty", "overriding royalty", "other nonworking interests" and "working interests" shall be interpreted as defined in W.S. 80-5-304. A division order may not alter or amend the terms of an oil or gas lease or other contractual agreement. A division order that alters or amends the terms of an oil and gas lease or other contractual agreement is invalid to the extent of the alteration or amendment and the terms of the oil and gas lease or other contractual agreement shall take precedence.
The flaw in this argument is that the division order was not used to "alter or amend" the terms of the assignments but only to assist the trial court in resolving the inherent ambiguity in the assignments.
Finally, Wadi maintains that there are many other documents which were created both before and after the creation of the division order that indicate Wadi's ORRI should be 3.125% and, therefore, there is no need to look at the division order. We have carefully reviewed those documents, and we are convinced that they do nothing more than perpetuate the ambiguity, which originated in the disputed assignments.

[¶14] We find the reasoning expressed in Wadi detailed above to be dispositive in this case. Therefore, we conclude that the district court in this case was likewise correct, as a matter of law, in determining that the disputed assignments were ambiguous. Similarly, because the assignments were ambiguous, the district court properly examined extrinsic evidence including expert testimony in order to resolve the ambiguity. We further agree with the district court's evaluation of the evidence that produced the conclusion that appellants' interest was proportionately reduced to .625 percent.

CONCLUSION

[¶15] Upon our review and analysis, we affirm the judgment the district court.

      . Questar Exploration & Production Company is the lessee burdened by appellants' overriding royalty interests, while Lance Oil & Gas Company, Inc. and Ultra Resources, Inc. hold interests in the involved lands.


author: GOLDEN, Justice.

text:
    2003 WY 138
    ALPINE CLIMATE CONTROL, INC., Appellant (Plaintiff), v. DJ'S, INC., d/b/a DJ's Thriftway; and Dennis Dobbin, Appellees (Defendants).
    No. 02-213.
    Supreme Court of Wyoming.
    Oct. 30, 2003.

      Representing Appellant: Brian N. Beigher of Hart & Beisher, Sheridan, Wyoming.
    Representing Appellee: Timothy J. Kirven and Robert E. Pfister II of Kirven and Kir-ven, P.C., Buffalo, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   GOLDEN, Justice.

[T1] In this breach of contract action, Appellant Alpine Climate Control, Inc., appeals from a jury verdict for the Appellee DJ's Inc., contending that the trial court improperly refused to instruct the jury on its theory that DJ's had breached the contract by actions that had prevented complete performance. Alpine claimed that performance was prevented when DJ's would not permit Alpine to perform warranty work to correct deficiencies. After reviewing the evidence and the instructions as a whole, we find that Alpine has failed to show any prejudice from the trial court's failure because the evidence adduced at trial did not support giving the instruction.

[¶2] We affirm the order of judgment for DJ's.

ISSUES

[¶3] Alpine presents the following issue for our review:

A. Did prejudicial error result from the District Court's refusal to give Appellant's proposed jury instruction regarding preventative performance?

DJ's presents two issues for our review:

A. Has Appellant failed to properly preserve its claim of prejudicial error by the District Court in refusing to give Appellant's proposed jury instruction?
B. Did the District Court properly refuse to give Appellant's proposed jury instruction regarding preventive performance of a contract where Appellant had completed its work and tendered its invoice?

FACTS

[¶4] Alpine is a corporation based in Sheridan, Wyoming, with the primary purpose of installing and maintaining heating and cooling equipment. DJ's operates a retail grocery store known as DJ's Thriftway that is located in Buffalo, Wyoming. Alpine had performed service work for DJ's for a long period of time, and in October of 2000, the parties agreed that Alpine would install freezers and compressors at DJ's on a time and materials basis. Alpine's service manager had indicated that the cost of installation might be as low as $15,000.00, but a written contract price was not set. Between October 24, 2000, and December 28, 2000, Alpine was at the store on an almost daily basis, incurring 441.75 hours of labor for which it submitted an invoice in the amount of $22,087.50. After materials and other services were included, Alpine billed DJ's for an amount totaling $29,839.45.

[¶5] DJ's paid $15,000.00 but refused to pay the remainder, and Alpine filed suit on June 22, 2001, for the unpaid balance. DJ's counterclaimed, and, at trial, the jury was instructed that DJ's contended that Alpine breached the contract and breached the warranty by failing to properly install the equipment. At trial, DJ's contended that Alpine had essentially completed installation the week after Thanksgiving, but was called numerous times to service the malfunctioning equipment during November and December. On December 25, 2000, the equipment failed completely, and although the record shows that Alpine returned for fifteen hours on December 27 and 28, DJ's contacted another company which discovered significant deficiencies with Alpine's work. Between December 26, 2000, and January 30, 2001, DJ's incurred expenses of over $13,000.00 to have the other company correct those deficiencies so that the equipment operated properly.

[T6] Alpine contended that it was ready, willing and able to perform warranty work and correct any problems with the equipment but that DJ's banned it from the premises, preventing it from performing the warranty work. Alpine requested a jury instruction regarding prevented complete performance that was refused by the trial court. The jury rendered a verdict for DJ's, and the trial court entered judgment against Alpine in the amount of $9,347.77. This appeal followed.

DISCUSSION

[17] Alpine contends that the trial court erred when it refused an instruction regarding its theory of the case. That instruction stated:

Where one party to a contract prevents complete performance of the contract by the other party, the party preventing performance has breached the contract.

Alpine contends that it was prejudiced by the trial court's refusal because the jury found that it had breached the contract although DJ's refused to allow warranty work to correct problems with the system. DJ's contends that this issue was not preserved for review under the requirement of W.R.C.P. 51(b) that Alpine objected to the refusal and provided the grounds for its objection. It further contends that the instruction was not supported by the evidence, and, therefore, its refusal was not prejudicial.

Standard of Review

[18] "[A] party is entitled to have a jury instruction upon its theory of the case but only if such theory is supported by competent evidence and a proper request for the instruction is made." Short v. Spring Creek Ranch, Inc., 731 P.2d 1195, 1199 (Wyo.1987). The record does not indicate that Alpine objected to the trial court's refusal of the instruction; however, its contention that the refusal was prejudicial because it deprived Alpine of an instruction on its theory of the case requires that we apply our plain error standard of review.

[19] That standard requires (1) that the record reflects clear and unequivocally the fact complained of; (2) that the facts prove a transgression of a clear rule of law; and (8) that the error affects a substantial right that is materially prejudicial. Triton Coal Co., Inc. v. Mobil Coal Producing, Inc., 800 P.2d 505, 511 (Wyo.1990). The plain error doctrine is infrequently applied in our cases where a party has failed to object to a jury instruction. Id. Unless an instructional error can be said to have plainly caused a fundamental prejudice to the defendant's legal rights, we will not overturn a verdict on appeal unless the instruction was objected to during the trial and a proper instruction was offered in its place. Id. at 512 (citing Gore v. State, 627 P.2d 1884, 1888-89 (Wyo.1981)).

[110] We review the propriety of jury instructions by reviewing all as a whole to see if they adequately and clearly advise the jury of the applicable law. Sellers v. Dooley Oil Transport, 2001 WY 44, 19, 22 P.3d 307, 309 (Wyo.2001). The function of jury instructions is to give guidance regarding the applicable law. Id. The trial court is not obligated to give an instruction offered by a party as long as the jury is adequately instructed on the law as it pertains to that case. Id. The trial court's ruling on an instruction must be prejudicial to constitute reversible error. Prejudice results when the instructions confused or misled the jury with respect to the proper principles of law. Id.

[¶11] In reviewing the evidence, we will assume the evidence in favor of the successful party is true, leave out of consideration entirely evidence of the unsuccessful party in conflict with it, and give to the evidence of the successful party every favorable inference which may fairly be drawn from it. Moberly Asphalt Maintenance, Inc. v. Royal Associates, Ltd., 618 P.2d 1347, 1351 (Wyo. 1980).

Jury Instructions

[112] Building and construction contracts contain a warranty either express or implied that the work will be sufficient for a certain purpose and will be performed in a skillful, careful, diligent, and workmanlike manner. Matheson Drilling, Inc. v. Padova, 5 P.3d 810, 812 (Wyo.2000); Arch Sellery, Inc. v. Simpson, 360 P.2d 911, 912 (Wyo. 1961). The contract is not performed until the work accomplishes the agreed result. Arch Sellery, 360 P.2d at 912; see also Kansas Turnpike Authority v. Abramson, 275 F.2d 711, 713 (10th Cir.1960) (where the principal object of the contract is to obtain a result, the builder is required to accomplish that purpose or result). Complete performance of a contract is proved by substantial performance that will exist even though there are minor defects that must be correct, ed at the expense of the contractor. Pacific-Wyoming Oil Co. v. Carter Oil Co., 31 Wyo. 314, 328-29, 226 P. 198, 198 (1924); Finley v. Pew, 28 Wyo. 342, 361-62, 205 P. 310, 317 (1922).

[113] When a party prevents performance by the other party, the nonperformance is excused, and the party preventing performance is in breach of contract. Chandler-Simpson, Inc. v. Gorrell, 464 P.2d 849, 852 (Wyo.1970); Sturgeon v. Phifer, 390 P.2d 727, 780 (Wyo.1964); Thatcher v. Darr, 27 Wyo. 452, 479, 199 P. 938, 947 (1921); see also 9 Arthur L. Corbin, Corbin on Contracts § 947, at 722 (int. ed.2002) (performance that was prevented or substantially hindered is a defense); 17B C.J.8. Contracts § 529, at 189 (1999). The excuse of nonperformance by prevention does not apply when the contractor's own performance is insufficient to achieve the contract's purpose. See Sturgeon, 390 P.2d at 729-80. Whether a party has prevented performance is a question of fact for the jury. Chandler-Simpson, 464 P.2d at 852.

[T14] Alpine's owner testified that he considered the project complete at the end of November because the equipment was up and running. He acknowledged that Alpine continued to return in December; however, he contended the services provided were to finish tasks not critical to the functioning of the equipment. Because the December invoice did not provide a breakdown of charges, a revised invoice was sent on January 9, 2001. It showed that Alpine returned to DJ's numerous times between December 1 and December 28, 2000, and expended about 104 hours on the contract. The invoice stated that eleven hours of warranty work were performed after October 24, 2000, but did not specify on which dates the warranty work occurred. The only express terms of the warranty stated that Alpine's workmanship warranty extended for one year from the date of the invoice. Nothing in the record indicates any evidence of an agreement that Alpine would not be liable for defective workmanship if notice and an opportunity to correct the defects were not given by DJ's.

[¶15] Despite Alpine's completion of installation and performance of warranty work, testimony at trial indicated that the system experienced significant problems in November and December and failed on Christmas Day of 2000. Alpine was called but did not show up, and another contractor began working on the system on December 26, 2000, and continued to work on it until January 30, 2001. Alpine's invoice stated that fifteen hours of labor was provided on December 27 and 28. The second contractor testified that his work was to remedy Alpine's defective workmanship and provided detailed descriptions of many problems requiring correction. His invoice for work and parts to correct the defective workmanship totaled over $13,000.00.

[¶16] This record shows that the jury had evidence that Alpine believed that it had completed its performance on the contract at least by early December when it submitted an invoice to DJ's. Despite this belief, the evidence indicates that Alpine continued to work on the system, that Alpine's owner believed that some of this work was for warranty purposes, that beginning December 26, another contractor began working on the system, and that Alpine returned on December 27 and 28 to work on the system. These facts show that Alpine was not prevented from any performance by DJ's. Without evidence to support giving an instruction about prevented performance, the trial court properly refused it.

[117] The evidence, however, did require instructions regarding defective workmanship. A cause of action for defective workmanship is available against a contractor either as breach of contract or negligence or both. Cline v. Sawyer, 600 P.2d 725, 732 (Wyo.1979). The following instructions were provided to the jury:

Warranty-In General
A warranty is defined as an affirmation of fact or promise by the seller of items possessing certain characteristics. A warranty may be made expressly and in so many words by the seller either in writing or orally or it may be implied by law from the circumstances of the contract.
Breach of Warranty
In construction contracts, there is an implied warranty that the work will be performed in a skillful, careful, diligent and workmanlike manner.
Measure of Damages-Warranty
If you find that Alpine Climate Control, Inc. breached the implied warranty, DJ's Inc. is permitted to recover those reasonably foreseeable damages that directly resulted from the breach-that is, such an amount as would place it in the condition it would have been in if Alpine Climate Control, Inc. had adequately installed the refrigeration equipment.

[¶ 18] Instructions provided to this jury also defined contract formation, breach of contract, and explained contract damages. Regarding performance, the jury was instructed that if Alpine performed "as required by the terms and conditions of the contract, and DJ's, Inc. failed to perform as required by the contract," then Alpine could recover any damages that it suffered. The jury was instructed that if Alpine failed to properly install the refrigeration equipment as agreed to by the parties, then DJ's could recover the damages that it suffered. Reviewed as a whole, these instructions adequately describe the law as it pertains to the evidence presented in this case.

[¶19] By its judgment, the jury determined that DJ's did not breach the contract by failing to pay Alpine the balance due on the invoice. The jury also determined that Alpine's performance did breach the contract and awarded DJ's damages. The evidence supports this verdict.

[¶20] The order of judgment is affirmed.

      . (b) Further instructions; objections. -At the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may file written requests that the court instruct the jury on the law as set forth in the requests. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury. Before the argument of the case to the jury has begun, the court shall give to the jury such instructions on the law as may be necessary and the same shall be in writing, numbered and signed by the judge, and shall be taken by the jury when it retires. No party may assign as error the giving or the failure to give an instruction unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter objected to and the grounds of the objection. Opportunity shall be given to make the objection out of the hearing of the jury.