author: KITE, Justice.

text:
    2003 WY 84
    James Lynn SIMMONS, Jr., Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-250.
    Supreme Court of Wyoming.
    July 15, 2003.

      Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Senior Assistant Appellate Counsel, Representing Appellant.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney

      General; and Sean W. Seoggin, Special Assistant Attorney General, Representing Ap-pellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   KITE, Justice.

[¶1] A jury convicted James Simmons, Jr. of child abuse and intimidating a witness. Mr. Simmons appeals, claiming prosecutorial misconduct, insufficiency of the evidence, and denial of a fair trial because of remarks made by a spectator during a witness' testimony and because the jury saw him in shackles. We hold the prosecutor's repeated attempts to introduce evidence of prior bad acts combined with his repetition of the inaudible testimony from the state's prime witness constituted prosecutorial misconduct requiring reversal and remand for a new trial.

ISSUES

[¶2] Mr. Simmons raises the following issues:

I. Did the trial court err in forcing [Mr. Simmons] to walk to the witness stand, in front of the jury, while shackled, after defense counsel had requested a brief recess to unshackle [him], when the crux of the trial court's "reason" for doing so was that the trial was moving too slowly and [Mr. Simmons'] trial counsel should have made the request sooner?
II. Was [Mr. Simmons] denied a fair trial, and therefore due process of law, when a courtroom spectator audibly called one of the defense witnesses a "liar" as the defense witness testified, and the trial court did nothing to eure the problem?
III. Did the prosecutor commit misconduct by violating the trial court's pretrial order, referencing juvenile conduct of [Mr. Simmons], questioning the alleged victim . about unnoticed prior bad acts of [Mr. Simmons], arguing [Mr. Simmons'] character as a reason to convict and repeatedly leading the alleged victim-witness throughout the course of her testimony (and repeating her answers to the jury)?
IV. Was there insufficient evidence to convict [Mr. Simmons], given the manner in which the jury was instructed?

The state restates the issues as follows:

I. Whether [Mr. Simmons] was prejudiced by walking to the witness stand in front of the jury while shackled?
IL. - Whether [Mr. Simmons] was denied a fair trial when a courtroom spectator whispered "lar" to her husband as a defense witness testified?
III. Did the prosecutor commit prejudicial misconduct when he asked questions regarding [Mr. Simmons'] prior bad acts and when he repeated the answers of a witness during direct examination?
IV. Was there sufficient evidence to conviet [Mr. Simmons], in light of the manner in which the jury was instructed on the elements of the crimes with which he was charged?

FACTS

[¶3] Mr. Simmons and his girlfriend, Natalia Bradford, are the parents of two young children: a boy, B.S.; and a girl, A.S. At the time of the events giving rise to this case, B.S. was twenty months old, and A.S. was three years old. In the late morning of March 29, 2001, a neighbor came to Mr. Simmons' apartment in Casper. B.S. met her at the door. The neighbor noticed bruises on B.S.'s face and dried blood around his lips and ear. She asked Ms. Bradford what happened. - Receiving no response, the neighbor took the children upstairs to her apartment. Onee upstairs, she and her husband noticed more bruising on B.S.'s body. They telephoned the Department of Family Services (DFS). Sometime later, two police officers arrived along with Joanne Robinson, an investigator from DFS. In the meantime, Ms. Bradford had retrieved the children and taken them back downstairs.

[¶4] The officers and Ms. Robinson went to Mr. Simmons' apartment, observed B.S., and questioned Mr. Simmons about the bruises on the boy's forehead and back. The testimony concerning Mr. Simmons' response was somewhat inconsistent. Ms. Robinson testified Mr. Simmons told her B.S. fell down a lot, hitting his head and back. John Hatcher, a Casper police officer, testified Mr. Simmons said B.S. threw a fit the night before in which he flung himself down onto the floor and hit his head on a toy. Law enforeement took the boy into protective custody and turned him over to DFS. Ms. Robinson took him to the hospital where he was examined by Mel Meyer, the emergency room physician. Dr. Meyer's report reflected the following assessment of B.S.'s condition: dehydration, multiple contu-sionsg/abrasions, - prominent - subarachnoid space, and neglect/abuse. Dr. Meyer testified B.S. had suffered nonaccidental trauma, meaning the bruises were not the result of falling down. He also testified the subarach-noid space was consistent with previous trauma. to

[¶ 5] Patrick Carr, the lead detective on the case, arrived at the hospital while B.S. was being examined. Officer Carr spoke to Mr. Simmons, who was in the hospital waiting room. Mr. Simmons told Officer Carr that B.S. fell down a lot and had tantrums in which he banged his head against the wall. Officer Carr asked Mr. Simmons if he would come down to the police station for a more thorough interview. Mr. Simmons agreed. An interview was conducted at the police station, and Mr. Simmons again denied causing B.S.'s injuries.

[¶ 6] The next morning, Officer Carr interviewed Ms. Bradford, who initially told him the same story as Mr. Simmons. Toward the end of the interview, however, she said Mr. Simmons had on occasion put B.S. in the corner and held his head against the wall and had done so on March 28; 2001. In addition, after initially denying that Mr. Simmons ever spanked the boy, she changed her story and said he had spanked B.S. in the past. She also advised the officer that she was planning to leave Mr. Simmons.

[¶ 7] Officer Carr then interviewed Mr. Simmons again who was initially cooperative and willing to answer questions. During this interview, Officer Carr confronted Mr. Simmons with the new information obtained from Ms. Bradford. Mr. Simmons said he did put B.S. in the corner but did not do so foreefully and he held him by his shoulders, not his head. He also admitted spanking B.S. on his diaper. When Officer Carr asked him about Ms. Bradford's plans to leave him, Mr. Simmons said he did not wish to speak anymore and requested an attorney. Officer Carr concluded the interview and placed Mr. Simmons under arrest.

[¶ 8] The following Monday, Ms. Bradford came back to the station and asked to speak with Officer Carr. During this interview, she told him she lied during the previous interview because Mr. Simmons had threatened to kill her if she told the truth. Now that he was in jail, she said she felt safe in coming forward with the truth. She said Mr. Simmons was coming down from "cranking" on March 28, 2001, they got into a fight, and he began hurting B.S. She said Mr. Simmons forced B.S. into the corner and, whenever the boy turned or tried to walk away, Mr. Simmons grabbed him by the head and forced him back, holding his forehead against the walls. She further reported Mr. Simmons repeatedly grabbed B.S., picked him up, and threw him on the bed. She also said he kicked the boy in the stomach when he was down on the floor. She told Officer Carr that, when she tried to intervene, Mr. Simmons hit her and pulled out a clump of her hair.

[¶ 9] Mr. Simmons was charged with child abuse, intimidating a witness, and battery. The latter two charges were based upon Ms. Bradford's allegations that Mr. Simmons threatened to kill her if she told the truth and hit her when she attempted to intervene in his abuse of B.S. Mr. Simmons was tried before a jury beginning July 80, 2001. On August 1, 2001, the jury found Mr. Simmons guilty of child abuse and witness intimidation and acquitted him of battery. The trial court sentenced him to serve two consecutive terms of not less than forty-eight months nor more than sixty months in the Wyoming State Penitentiary.

DISCUSSION

A. Prosecutorial Misconduct

[¶ 10] Mr. Simmons contends prosecuto-rial misconduct occurred at several stages during the trial. He claims the prosecutor repeatedly solicited prohibited testimony concerning prior bad acts, improperly referred to prior bad acts during his closing argument, and committed misconduct by repeating Ms. Bradford's testimony in response to his questions. Mr. Simmons asserts the cumulative effect of these instances of misconduct denied him a fair trial.

[¶ 11] Looking first to the assertion that the prosecutor solicited testimony of prior bad acts, we find the following relevant facts in the record. Prior to trial, defense counsel filed a motion asking the state to provide notice of its intent to introduce evidence of prior bad acts under W.R.E. 404(b). The record contains no such notice, leaving us to conclude the state did not notify the court or the defense that it intended to introduce such evidence. Although there are references by the trial court to pretrial rulings prohibiting evidence of prior bad acts, we have been unable to locate any such ruling in the record before us.

[¶ 12] At trial, during the state's redirect examination of Ms. Bradford, the following exchange occurred:

Q Was he on probation in Texas?
[DEFENSE COUNSEL]: Objection, Your Honor, I don't know how this is relevant.
THE COURT: I'll sustain on relevancy.
Q Now, had you related the incident that occurred on March 28th, was there any other incident where the Defendant had attacked you in that manner?
[DEFENSE COUNSEL]: Objection, Your Honor. We're once again going beyond the scope of the original direct and now we're going into matters that could be 404(b) evidence of prior bad acts that hadn't been noticed.
[PROSECUTOR]: Your Honor, I think I made the same objection, her ability as a parent, her mother is relevant, but now the Defendant's ability to be a father and what he's doing is not relevant?
THE COURT: Ill sustain. We have a battery claim in this case and I think that charge and that incident needs to stand on its own. I do think that balancing out 404(b) and also relevancy and 408 of the Wyoming Rules of Evidence that we have been going into an area I think we need to stay out of, So I'll sustain the objection.

Then, during the state's cross-examination of Mr. Simmons' mother, the following discussion occurred:

Q.... When your son was in trouble in Texas, he was also placed on probation, wasn't he?
[DEFENSE COUNSEL]: Objection, Your Honor. We're getting to 404(b) material here and we've already discussed that and had a ruling on it.
[PROSECUTOR]: Your Honor, she's testified, they opened the door to his character and they opened the door all the way back to 1997 in Texas and what a good father he was and how much time he spent with the kids and they opened the door to his character in regard to this. It's not 404(b) now, Your Honor. It's character evidence of the Defendant.
THE COURT: I'll sustain the objection. I think that consistent with the pretrial rulings and with my feeling there needs to be some bounds to inquiry in this area. Tl sustain.

Despite the trial court's ruling, the prosecutor later asked the witness again whether Mr. Simmons was on probation in Texas. He also raised the issue of prior bad acts in the following exchange:

Q Correct me if I'm wrong, but wasn't he placed in the Wyoming Boys School?
[DEFENSE COUNSEL]: Your Honor, I object to that as a juvenile record but beyond the seope.
[PROSECUTOR]: This doesn't go to criminal conduct, Your Honor. This goes to raising her son-
THE COURT: Please approach, if you would, counsel.
(Proceedings held at the bench.)
THE COURT: I'm inclined to come down very hard on the prosecution. You've been tap dancing around other bad acts, conduct, convictions. I know perhaps the door has been opened to part of it, but I think this inquiry, as I see it, is in violation of the pretrial order and I think you're trying to continue to beat in every way and every angle you can the Defendant's prior criminal record.
I have to agree that juvenile court matters are confidential and I think perhaps there was some discussion and some general opinions from this witness that may relate to her son's background, but I think attempting to impeach or inquire in this area is completely improper. But I'll allow you to convince me and tell me why I'm wrong, giving your view of why you need to inquire about juvenile convictions and juvenile dispositions.
[PROSECUTOR]: Your Honor, I'm not going to go into that area any further. I think the Court has made your position clear. It's just, Your Honor, that they can come in and put the Defendant's character into issue by indicating what a great son he was and father, and I'm trying to establish that's certainly not the case. I, as the prosecution, can't do that in the case in chief.
They opened the door to that both in their opening statement and in numerous questions they have been asking that witness and I believe it's relevant because they have opened the door.
THE COURT: Anything else, [defense counsel]?
[DEFENSE COUNSEL]: I agree with the Court and say that we certainly admitted to the warrant and the charges in Casper that he was serving in October, and I have no objection to the discussion of that felony, which is the only felony on his record, and would ask that he be restrained, limited only to that particular matter.
THE COURT: Okay. Well, I'll rule that I'll sustain the objection and I'm going to instruct the prosecution that I do not want any more questioning in this area. I feel it's improper. It's beyond the scope of the rulings I made pretrial in this case as to other bad acts.
If you want to go into other areas, let's do it outside the presence of the jury and you make an offer of proof as to what other criminal conduct and bad acts you specifically want to inquire of this witness. Thank you.
(Proceedings held in open court.)
THE COURT: After conference at this bench, the Court sustains the pending objection. I strike the last question asked by [the prosecutor] and instruct the jury to disregard it completely.

[¶ 13] Mr. Simmons also claims prosecu-torial misconduct occurred when the prosecutor used inadmissible character evidence during closing argument:

Now, you have to also look at the character of the Defendant and one way to do that is to, I guess, look at his past. He is a convicted felon. I'm not going to sit here and say because he's a convicted felon means he's automatically guilty of this offense because that's not the case, but it does indicate a lot about his character and what he's all about, what he's into.

Defense counsel did not object to this argument.

[¶ 14] Finally, Mr. Simmons asserts pros-ecutorial misconduct occurred when, during direct examination of Ms. Bradford, the prog-ecutor began a number of his questions by repeating the witness' response to his last question.

Q Where have you been for the last couple of days?
A In Colorado.
Q In Colorado?
A Yes.
Q When did you get here?
A About 3:00 this morning.
Q 3:00 this morning?
A Yes.

(Emphasis added.) The record reflects this type of questioning-Ms. Bradford answering inaudibly and the prosecutor repeating her answer for the jury-occurred with some frequency throughout the direct examination. The following excerpt further illustrates the problem:

Q.... Was James home the day before on Wednesday, March 8th?
A For a while he was.
Q For a whiles: What time of the day was he home?
A A little before noon maybe.
Q Before noon?
A And then he left. He was in and out pretty much.
Q He was in and out throughout the day on Wednesday?
A Right.
Q Okay. Now, did anything unusual happen that day?
A Yes.
Q What happened that was unusual?
A We were fighting and James was arguing throughout the day.
Q You and James were fighting and arguing throughout the day. What was-what were you arguing about, fighting about?
A I had told him that I was leaving with my kids.
Q Speak up.
A I told him that I was leaving and taking the kids.
Q You told him that you were leaving-
[DEFENSE COUNSEL]: Your Honor, counsel keeps repeating the answer.
THE COURT: I'll sustain. You have been repeating questions from the outset.
JUROR: We can't hear, Your Honor. If he doesn't repeat it, we wouldn't be able to understand. We can't hear her so when he says what she says it helps.
THE COURT: Yeah. It's an improper questioning, though. I'll stand by my ruling. The witness needs to speak up.

(Emphasis added.) Despite the trial court's ruling, the prosecutor continued to repeat the witness' answers for the jury on a recurring basis. Defense counsel reiterated her objection. After the lunch recess, the trial court offered the following remarks in open court:

[The jury has advised the bailiff that they are having a difficult time hearing Ms. Bradford and I think I've spoken out on that a couple times. I would ask that you speak directly into the microphone, that you speak up.
To the extent the jury cannot hear testimony they obviously can't consider that. There's only so much the Court can do and I leave it up to counsel to emphasize upon the witness the need to speak up and to present testimony that the jury can, in fact, hear and consider.

Thereafter, the frequency of repeated answers diminished.

[¶ 15] In reviewing claims of prosecutorial misconduct, we have said:

Prosecutorial misconduct " 'has always been condemned in this state' " Earll v. State, 2001 WY 66, ¶ 9, 29 P.3d 787, ¶ 9 (Wyo.2001) (quoting Valerio v. State, 527 P.2d 154, 156 (Wyo.1974)). Whether such misconduct has been reviewed on the basis of harmless error, W.R.Cr.P. 52(a) and W.R.A.P. 9.04, or on the basis of plain error, W.R.Cr.P. 52(b) and W.R.A.P. 9.05, this Court has focused on whether such error affected the accused's "substantial rights." The accused's right to a fair trial is a substantial right. "Before we hold that an error has affected an accused's substantial right, thus requiring reversal of a conviction, we must conclude that, based on the entire record, a reasonable possibility exists that, in the absence of the error, the verdict might have been more favorable to the accused." Earl, 19.

Williams v. State, 2002 WY 136, ¶ 21, 54 P.3d 248, ¶ 21 (Wyo.2002) (some citations omitted). From our review of the record, we conclude the case against Mr. Simmons was not without difficulty. The only witness against him with firsthand knowledge of the events leading to B.S.'s injuries was Ms. Bradford. The testimony at trial was that she gave inconsistent accounts of what happened, first confirming Mr. Simmong' statement that he did

not inflict the injuries upon B.S. and then recanting and accusing Mr. Simmons of abusing the boy. Mr. Simmons also gave inconsistent statements, first telling law enforcement and DFS officials that B.S.'s injuries resulted from falls or tantrums and later testifying Ms. Bradford inflicted the injuries.

[¶ 16] Other evidence presented at trial also raised questions about Ms. Bradford's credibility, including letters she wrote to Mr. Simmons after he was arrested and DFS records indicating B.S. was removed from her care while Mr. Simmons was incarcerated. A significant portion of her testimony on direct examination likely would have gone unheard by the jury but for the prosecutor's practice of repeating her inaudible responses. The trial court admonished the prosecutor about this mode of questioning but it continued with some regularity throughout the direct examination.

[T°17] While the prosecutor's manner of questioning Ms. Bradford is somewhat troubling, it is not sufficient, by itself, to warrant reversal. However, that questioning, when combined with the prosecutor's improper and repeated attempts to insert prior bad acts and Mr. Simmons' character into the jury's determination-attempts made over defense counsel's objections and the trial court's rulings prohibiting such evidence-convinees us a reasonable probability exists that Mr. Simmons' right to a fair trial was affected.

[T18] Despite having provided no notice of intent to raise prior bad acts, the prosecutor asked questions not once but on three separate occasions during trial about Mr. Simmons having been on probation in Texas. The prosecutor raised the issue a second and a third time even after the trial court sustained a defense objection to such questions. Again without notice, the prosecutor raised the specter of prior bad acts by asking Ms. Bradford about other incidents where Mr. Simmons had attacked her. The trial court sustained an objection as to that question. Undaunted, the prosecutor persisted in his efforts to apprise the jury: of Mr. Simmons' prior criminal record by asking about his juvenile record and whether he had been placed in the Wyoming Boys' School. This

time, the trial court called counsel to the bench, sharply admonished the prosecutor, sustained the defense objection, struck the question, and instructed the jury not to consider it. Nevertheless, in closing argument, the prosecutor asked the jury to look at Mr. Simmons' character- and suggested one way to do that was by looking at his past.

[119] W.R.E. 404(b) clearly prohibits evidence of prior bad acts to prove character disposed to eriminal conduct. Under this subsection, evidence is inadmissible if the thrust of the evidence is only to demonstrate that the defendant has a disposition to commit crimes. Gleason v. State, 2002 WY 161, ¶ 17, 57 P.3d 332, ¶ 17 (Wyo.2002). No other purpose for the prosecutor's repeated references to prior bad acts appears in the record, nor was any identified by the prosecutor. We conclude, based upon the entire record, a reasonable probability exists that, absent the prosecutor's conduct, the verdict might have been more favorable to the accused. The prosecutor's conduct, therefore, affected a substantial right, requiring reversal of the conviction and remand of the case for a new trial.

{120] On remand, the state will be required to comply with Howard v. State, 2002 WY 40, 42 P.3d 483 (Wyo.2002), if it intends to reference prior bad acts. In Howard, a case decided after Mr. Simmons' 2001 trial, we held that the filing of a pretrial demand for notice of intent to introduce evidence under W.R.E. 404(b) shall be treated the same as an objection and requires the state to justify the evidence as proper under W.R.E. 404(b), relevant, and more probative than unfairly prejudicial. In reaching this result, we said:

Not only will such a rule enbance the defendant's prospects of receiving due process and a fair trial, it will also enhance the district court's ability to reflect and rule upon a significant evidentiary issue. Rulings on uncharged misconduct evidence are too important to be made in the heat and pressure of a trial, with the jury twiddling its thumbs in the next room.

2002 WY 40, ¶ 23, 42 P.3d 483.

B. Shackling

[T21] During its case in chief, the defense informed the trial court that Mr. Simmons would be its next witness. Defense counsel then asked to approach the bench, and the following discussion took place:

[DEFENSE COUNSEL]: The Defendant is in shackles. I would just as soon he not go to the witness stand in shackles. I apologize for not anticipating this beforehand, but we would ask for just a short recess so that he can make that trip and then come right back.
THE COURT: [Prosecutor]?
[PROSECUTOR]: No objection, Your Honor. I know this has happened before and sometimes we've taken the shackles off underneath the table It's whatever the Court wants.
THE COURT: Okay. Well, my thought is if a request to free him from shackles was made earlier, I would go ahead and grant that. In the context of this case, it's already been indicated that he is in custody and while he has been in street clothes I don't think the fact that he may be subject to restrain[t]s is-would be a surprise to the jurors, so I don't want to delay these proceedings any further.
It seems like things have really bogged down and ARE going slow. So I'll deny the request, and as I said, I'll allow him to testify, but he can just walk to the witness stand as any other witness would do.

The defense then called Mr. Simmons who came forward in shackles, was sworn, and proceeded to testify.

[122] Mr. Simmons claims he was denied his constitutional right to a fair trial when the trial court required him to appear before the jury in shackles. We recently addressed this same issue in Asch v. State, 2003 WY 18, ¶ 62, 62 P.3d 945, 162 (Wyo.2008), and Urbigkit v. State, 2008 WY 57, 1 16, 67 P.3d 1207, 116 (Wyo.2003), wherein we said it is an abuse of discretion for a trial court to require a defendant to be shackled or otherwise physically restrained in the courtroom during a jury trial unless: (1) the state moves for such measures, (2) the court hears the state's motion, (8) the defendant has an opportunity to contest the motion, and (4) the court states on the record compelling reasons justifying the measures. Because we reverse and remand for a new trial on the issue of prosecutorial misconduct, we do not decide whether the trial court abused its discretion in requiring Mr. Simmons to appear before the jury in shackles. However, on remand, the procedures outlined in Asch must be followed. Under Asch, the use of restraints was clearly not appropriate where, as here, the state did not object to removing the shackles and the only reasons appearing in the record for not removing them were Mr. Simmons' failure to raise the matter earlier and the court's concern that the trial was proceeding too slowly and should not be delayed further.

C. Spectator Calling Witness a "Liar"

[¶ 23] Mr. Simmons asserts he was denied a fair trial because a spectator called a defense witness a liar during her testimony. He claims plain error occurred because the remark was prejudicial on its face and the trial court took no steps to determine whether the jury heard the remark and to correct any unfair prejudice. While asserting there are no Wyoming cases directly on point, Mr. Simmons cites Gallup v. State, 559 P.2d 1024 (Wyo.1977) (per curiam), and Miller v. State, 904 P.2d 344 (Wyo.1995), for the proposition that the trial court must at least take steps under these circumstances to cure any unfair prejudice.

[124] The record reflects the following occurred with respect to this claim. During the state's cross-examination of Mr. Simmons' mother, defense counsel asked to approach the bench. A bench conference was held during which defense counsel informed the court that, during Ms. Simmons#' testimony, he heard someone behind him say, "she's a liar." Apparently, the court reporter also overheard the remark. The trial court excused the jury and asked the woman seated behind defense counsel, who was later identified as Ms. Bradford's grandmother, to come forward. The trial court admonished the woman and her husband against making statements intended to influence the jury or detract from the proceedings and threatened to oust them from the courtroom if they made further such statements. The couple apparently left the courtroom. After a recess, the jury was brought back in, and the trial continued. The trial court did not inquire of the jury whether it heard the remark, nor did it take other corrective action. Defense counsel, however, did not object to the manner in which the trial court handled the situation. He did not, for example, ask the trial court to question the jurors about whether they heard the remark, nor did he ask for an instruction reminding the jury that it was to consider only the evidence presented. Defense counsel also did not move for a mistrial.

[125] Because no objection was made, Mr. Simmons must show plain error occurred. Under our plain error standard of review, Mr. Simmons must show a clear and unequivocal rule of law was violated, the violation clearly appeared in the record, and the violation resulted in denial of a substantial right to his material prejudice. Urbigkit, 2008 WY 57, ¶ 51, 67 P.3d 1207. Pursuant to the United States and Wyoming Constitutions, there is no question that a criminal defendant is guaranteed a right to a jury trial, and impartiality of the jury is an essential element of the guarantee. Oldman v. State, 998 P.2d 957, 963 (Wyo.2000); Garcia v. State, 777 P.2d 603, 607-08 (Wyo.1989). When jurors consider extrinsic evidence, a new trial is required if the evidence poses a reasonable possibility of prejudice to the defendant. Garcia, 777 P.2d at 608. However, a new trial is not required every time a juror is placed in a potentially compromising situation. Id.

"[It is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen."

Id. at 609 (quoting Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982)). Thus, we have said the trial judge is responsible for maintaining the decorum in the courtroom and has a large measure of discretion in responding to potentially prejudicial occurrences. Gallup, 559 P.2d at 1026. This is so because the trial judge is in a far better position to assess the effect of potentially prejudicial occurrences upon the jury. Id.

[T26] At the same time, defense counsel also bears a burden to ensure such potential prejudice is adequately addressed. Where counsel has failed to ask the trial court to admonish the jury, move for a mistrial, or raise an objection to the trial court's response, we have declined to reverse. See Clegg v. State, 655 P.2d 1240, 1241-42 (Wyo.1982) (upholding trial court's response when victim called the defendant a goddamn liar during his testimony); Tryon v. State, 567 P.2d 290, 293-94 (Wyo.1977) (upholding trial court's response to report that juror received anonymous telephone call concerning prior acts of defendant where defense counsel did not move for mistrial or object); Gallup, 559 P.2d at 1026 (upholding trial court's response to courtroom altercation between victim's father and defendant during vietim's testimony where defense counsel failed to object, ask for further admonition, or move for mistrial). In such cases, we inferred defense counsel considered the trial court's response sufficient. Gallup, 559 P.2d at 1026; Tryon, 567 P.2d at 293. These cases illustrate the point that defense counsel bears a substantial burden to ensure such error is adequately addressed at the time it occurs. Where, as here, defense counsel stood silent while the proceedings were allowed to continue without asking the trial court to admonish the jury, give a corrective instruction, or even inquire of the jury whether it heard any comment from the audience, we hold that no violation of a clear and unequivocal rule of law occurred.

[127] Mr. Simmons has also failed to show he was denied a substantial right resulting in material prejudice. Error is prejudicial only if the defendant can establish a reasonable probability that, in the absence of the error, the verdict might have been more favorable. Beaugureau v. State, 2002 WY 160, ¶ 16, 56 P.3d 626, ¶ 16 (Wyo.2002). Absent evidence that the jury heard the remark made by the spectator, Mr. Simmons cannot establish a reasonable probability that, in the absence of the remark, the verdict might have been more favorable, and his claim must fail.

D. Sufficiency of the Evidence

[128] We review sufficiency of the evidence claims in eriminal cases according to the following standard:

[W] e must determine whether a rational trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt. We do not consider conflicting evidence presented by the unsuccessful party, and afford every favorable inference which may be reasonably and fairly drawn from the successful party's evidence. We have consistently held that it is the jury's responsibility to resolve conflicts in the evidence. "We will not substitute our judgment for that of the jury, ... our only duty is to determine whether a quorum of reasonable and rational individuals would, or even could, have come to the same result as the jury actually did." [Bloomquist v. State, 914 P.2d 812, 824 (Wyo.1996)].

Williams v. State, 986 P.2d 855, 857 (Wyo.1999) (some citations omitted); see also Urbigkit, 2003 WY 57, ¶ 44, 67 P.3d 1207.

[129] Pointing to Instruction No. 8, which sets forth the elements necessary for the crime of child abuse, Mr. Simmons contends sufficient evidence was not presented for the jury to convict him of both intentionally and recklessly inflicting bodily injury upon B.S. and, without sufficient evidence of both, the verdiet must be set aside. Instruction No. 8 stated in relevant part:

The elements of the crime of Child Abuse, as charged in Count I, are:
1. On or between March 28, 2001 and March 29, 2001
2. In the County of Natrona and State of Wyoming
3. The Defendant, James Simmons, Jr.
4. As a person responsible for the child's welfare
5. Intentionally or recklessly
6. Inflicted physical injury, excluding reasonable corporal punishment
7. Upon [B.S.], a person under the age of eighteen (18) years.

(Emphasis added.) Mr. Simmons cites Bush v. State, 908 P.2d 968, 966 (Wyo.1995), in support of his argument, wherein we held a verdict must be set aside in cases where the verdict is supportable on one ground but not on another and it is impossible to tell which ground the jury selected. Bush and the line of cases following it involved charging doeu-ments and jury instructions containing alternative elements constituting the crime. See Urbigkit, 2003 WY 57, 67 P.3d 1207; May v. State, 2003 WY 14, 62 P.3d 574 (Wyo.2003); Tanner v. State, 2002 WY 170, 57 P.3d 1242 (Wyo.2002). Because in those cases the evidence was insufficient to prove both of the alternative elements and it was impossible to tell which alternative the jury relied upon for conviction, we reversed. Relying on these cases, Mr. Simmons elaims his conviction for child abuse must be reversed because the state proved only that he intentionally injured B.S. and not that he recklessly injured him. Mr. Simmons asserts there is no evidence to sustain a conviction based on recklessly inflicting injury and so, under the Bush line of cases, his conviction must be reversed.

[130] In O'Brien v. State, 2002 WY 63, ¶ 20, 45 P.3d 225, 120 (Wyo.2002) (citation omitted), we said:

The Model Penal Code provides that when recklessness suffices to establish an element, such element also is established if a person acts purposely or knowingly. The Explanatory Note to this Code explains that this rule makes it unnecessary to state in the definition of an offense that the defendant can be convicted if it is proved that he was more culpable than the definition of the offense requires. Thus, if the crime can be committed recklessly, it is no less committed if the actor acted purposely.

Under this reasoning, if the evidence supports a finding that a reasonable jury could conclude Mr. Simmons intentionally inflicted physical injury upon B.S., recklessness is established. We hold, therefore, it was not error for the trial court to instruct the jury that it could find Mr. Simmons guilty of child abuse if it found he intentionally or recklessly inflicted the injuries.

CONCLUSION

[¶31] Even though no error occurred on the claims of insufficiency of the evidence and denial of a fair trial because of a spectator's remarks, we reverse and remand because prosecutorial misconduct occurred when the prosecutor repeatedly referred to prior bad acts over defense counsel's objections and the trial court's rulings. On remand for a new trial, the state must justify the evidence of prior bad acts as proper under W.R.E. 404(b), relevant, and more probative than prejudicial. Additionally, on remand, the trial court must ensure compliance with the procedures outlined in Asch if the use of physical restraints is at issue.

      . The prosecutor's direct examination of Ms. Bradford consists of forty-two pages in the trial transcript. Of those forty-two pages, sixteen (or more than one-third) contain this type of questioning.

      . Prior to oral arguments, Mr. Simmons filed a motion asking this Court to remand the case to the trial court for a hearing to establish that the layout of the courtroom was such that jurors could have overheard the spectator's remark. We denied the motion because, even if Mr. Simmons established the layout of the courtroom, that would not show whether jurors in fact heard the spectator's remark.


source: Caselaw Access Project

author: GOLDEN, Justice. HILL, Chief Justice, BURKE, District Judge,

license: Public Domain

text:
    2003 WY 86
    Delores A. KOLSCHEFSKY and Dwayne H. Kolschefsky, Appellants (Plaintiffs), v. Mark W. HARRIS and Harris Law Firm, P.C., Appellees (Defendants).
    No. 02-23.
    Supreme Court of Wyoming.
    July 15, 2003.
    William R. Fix, Jackson, Wyoming, Representing Appellant.

      V. Anthony Vehar of Vehar Law Offices, Evanston, Wyoming, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN , and VOIGT, JJ., and BURKE, D.J.

       Chief Justice at time of oral argument

   GOLDEN, Justice.

[¶1] Delores A. Kolschefsky and Dwayne H. Kolschefsky (Kolschefskys) filed a legal malpractice action against Mark W. Harris and Harris Law Firm, P.C. (Harris), claiming Harris was negligent in failing to file a medical malpractice claim on their behalf within the period of the statute of limitations. The district court entered summary judgment against Kolschefskys on the grounds that their voluntary bankruptey petition constituted an anticipatory breach or repudiation of the contingent fee agreement with their attorney, discharging him from any further performance as their attorney. We affirm the summary judgment for that reason and on the additional grounds that the Kolschef-skys' interest in the underlying medical malpractice claim was transferred by operation of law to their bankruptcy estate.

ISSUES

[¶2] Kolschefskys state numerous issues:

® Should the lower court have even considered the summary judgment motion which was untimely raised?
e Did the filing of the bankruptcy reject the fee agreement and, if so, what is the effect of the rejection?
e Did Harris re-affirm the fee agreement by his actions?
e Was Harris required to give notice in writing of his termination of the fee agreement?
e Do the Rules of Professional Responsibility have any applicability?
e Do the Rules Governing Contingency Fee Agreements have any applicability?
e Did Harris act as the Kolschefskys' attorney both before and after the filing of the bankruptey petition?
e Even if the defense is deemed to have been timely asserted, then does the fact that the executory fee agreement was rejected nullify the attorney's responsibilities?
e Did Harris continue to represent the clients even after the bankruptey petition was filed, and, if so, what is the effect of his continued representation?

Appellees state the issue from their perspective:

Was the district court correct in ruling that there was no genuine issue of material fact and that the Appellees were entitled to summary judgment as a matter of law?

FACTS

[¶3] Delores Kolschefsky was allegedly injured on May 13, 1998, while undergoing chiropractic manipulation to her neck. On June 15, 1998, the Kolschefskys consulted with Attorney Harris, who agreed to represent them regarding a possible medical malpractice claim against the chiropractor. The Kolschefskys and Harris signed a written contingent fee representation agreement on June 18, 1998. Pursuant to the applicable statute of limitations, Wyo. Stat. Ann. § 1-3-107 (LexisNexis 2001), any action against the chiropractor would have had to be brought within two years of the alleged injury date of May 13, 1998.

[¶4] Between June 1998 and August 1999, Harris investigated Kolschefskys' case and attempted to obtain a medical expert to testify regarding the chiropractic standard of care and its breach. The sufficiency and reasonableness of those efforts is contested by the parties, as is Harris' statement that he terminated his representation agreement with the Kolschefskys verbally in August 1999. Nevertheless, it is undisputed that on November 16, 1999, Kolschefskys filed a joint petition for Chapter 7 liquidation in the United States Bankruptcy Court for the District of Wyoming. Despite the bankruptcy filing, Kolschefskys and Harris continued to have some limited discussions about the medical malpractice claim, and Harris made at least one contact to a potential expert witness on their behalf in May 2000. Harris then returned their file to Kolschefskys in July 2000.

[¶5] Kolschefskys filed their bankruptcy pro se; they did not consult with or inform Harris before the filing or seek any bank-ruptey advice from him after the filing. Mrs. Kolschefsky prepared the bankruptcy petition and schedules with the help of an instructional book and forms that she had purchased. In their bankruptcy filings, the Kol-schefskys did not disclose as an asset their medical malpractice claim against the chiropractor or any legal malpractice claim against Harris. They also did not identify the contingent fee agreement with Harris either as a liability or an executory contract. Harris was listed as an unsecured creditor in the amount of $298 for costs he advanced in the medical malpractice matter.

[¶6] The bankruptcy trustee appointed to administer Kolschefskys case filed his case report with the bankruptey court on February 15, 2000, indicating that there were no assets to be administered for distribution to creditors and that all scheduled property should be abandoned back to the debtors. A Discharge of Debtor was issued by the bank-ruptey court on March 15, 2000, and the bankruptey case was closed on March 22, 2000.

STANDARD OF REVIEW

[T7] In reviewing summary judgment, we apply the same standards as the trial court, without affording any deference to the trial court's decisions on issues of law. Bevan v. Fix, 2002 WY 43, ¶ 18, 42 P.3d 1013, ¶ 13 (Wyo.2002). In Bevan we stated:

Summary judgment is appropriate if the record, viewed in the light most favorable to the non-moving party, reveals that no genuine issues of material fact exist and the prevailing party is entitled to judgment as a matter of law. Worley v. Wyoming Bottling Co., Inc., 1 P.3d 615, 620 (Wyo.2000) Terry v. Pioneer Press, Inc., 947 P.2d 273, 275 (Wyo.1997); Davis v. Wyoming Medical Center, Inc., 934 P.2d 1246, 1250 (Wyo.1997); W.R.C.P. 56(c). A fact is material if it establishes or refutes an essential element of a claim or defense. Tidwell v. HOM, Inc., 896 P.2d 1322, 1324 (Wyo.1995).

Id. Moreover, we may uphold the grant of summary judgment upon any proper legal ground finding support in the record. Id. at 11 26, 42 P.8d 1018.

DISCUSSION

[¶8] The district court granted defendants' summary judgment based upon the effect of Kolschefskys' bankruptcy filing on the representation agreement between them and Harris. We concur with the district court's analysis.

[¶9] We have held that in a legal malpractice action, although the standard of care sounds in tort when it is stated in terms of a reasonably competent attorney, the basis of the action is contractual and an attorney/client relationship is an essential element for maintenance of the lawsuit. Bowen v. Smith, 838 P.2d 186, 196 (Wyo.1992); Brooks v. Zebre, 792 P2d 196, 201 (Wyo.1990). Viewing the facts in the light most favorable to the Kolschefskys, we accept that Harris had a valid attorney/client contract with them in November 1999 when they filed for bank-ruptey. That contract was executory in that both sides' performance obligations had yet to be fulfilled.

[¶10] Upon commencement of a bank-ruptey case, the bankruptcy trustee has authority to assume or reject the debtor's exec-utory contracts and leases. 11 U.S.C. § 865(a) (2000). In a Chapter 7 liquidation bankruptey, "if the trustee does not assume or reject an executory contract ... within 60 days after the order for relief, ... then such contract is deemed rejected," id. at § 8365(d)(1), and the rejection constitutes a breach of the contract relating back to the date the bankruptcy petition was filed. Id. at § 865(g).

[T11]l A party's rejection - or breach of an executory contract is an anticipatory repudiation of the contract which relieves the other party of any remaining performance. Roussalis v. Wyoming Medical Center, Inc., 4 P.3d 209, 254 (Wyo.2000). Thus a debtor's contractual relationship with lawyer ends onee a bankruptey petition is filed and the attorney/client contract is rejected or deemed rejected by the trustee. Banov v. Kennedy, 694 A2d 850, 859 (D.C.App.1997) (citing In re Taylor, 91 B.R. 302, 312 (Bnkr.D.N.J.1988)). The representation agreement between Kolschefskys and Harris was terminated by operation of law upon their bankruptcy filing before the running of the statute of limitations, and there was no longer an attorney/client contract upon which to base a legal malpractice claim.

[¶12] Kolschefskys, however, raise additional arguments based on the alleged post-petition reaffirmation of the attorney/client agreement, or the creation of a new agreement. We will therefore address an additional ground for upholding the summary judgment that would apply to any alleged post-petition malpractice.

[¶13] The commencement of a bankruptcy case creates a bankruptcy estate as a discrete legal entity, separate and apart from the debtor, that includes "all legal or equitable interests of the debtor in property as of the commencement of the case." 11 U.S.C. § S41i(a)(1) (2000). This estate includes all causes of action existing on the petition date, whether or not a lawsuit has been commenced, and no matter how inchoate or unliquidated the underlying claim. Dorr, Keller, Bentley & Pecha v. Dorr, Bentley & Pecha, 841 P.2d 811, 815 (Wyo.1992) (citing Delgado Oil, Inc. v. Torres, 785 F.2d 857 (10 Cir.1986), and United States v. Whiting Pools, Inc., 462 U.S. 198, 204-05 n. 8, 103 S.Ct. 2309, 76 LEd.2d 515 (1983). The estate exists by operation of law and is not limited to that property disclosed by the debtors on their bankruptey schedules.

[¶14] Therefore, the Kolschefskys' medical malpractice claim against Mrs. Kolschef-sky's chiropractor became part of their bank-ruptey estate as of November 16, 1999, such that they no longer had any interest in the claim and no standing to bring a lawsuit based on that claim. Dorr, Keller, Bentley & Pecha, 841 P.2d at 816. Although not argued by Harris, the same analysis would apply to any legal malpractice claim against Harris that accrued prior to the bankruptcy filing date. This result occurs by operation of law, regardless of the intent or understanding of the parties.

[¶15] Property may be abandoned by the trustee after notice and a hearing, 11 U.S.C. § 554(a) (2000), or upon request of a party and order of the court. Id. at § 554(b). In addition, scheduled property that is not otherwise administered by the trustee is automatically abandoned to the debtor when the case is closed. Id. at § 554(c). However, if not administered in the bankruptey case or abandoned pursuant to one of these provisions, property remains in the estate even after discharge of the debtor and even when the case is closed. Id. at § 554(d).

[¶16] The Kolschefskys did not disclose any medical malpractice or legal malpractice claim to the bankruptey court, and there is no evidence of a hearing in that court on the issue of abandonment of these claims to the debtors. The automatic abandonment provision upon closing of a bank-ruptey case pursuant to 11 U.S.C. § 554(c) is expressly limited to property that is properly scheduled. Any interest of the Kolschefskys accruing before their bankruptcy filing became and remains vested in their bankruptey estate. Barowsky v. Serelson, 102 BR. 250, 253 (D.Wyo.1989), affd, 946 F.2d 1516 (10th Cir.1991). The bankruptcy trustee had exclusive standing to pursue that interest on behalf of the estate. Dorr, Keller, Bentley & Pecha, 841 P.2d at 815. Therefore, even if a re-affirmed or new attorney/client contract was formed between Kolschefskys and Harris after the bankruptcy filing, and even if Harris' post-petition representation fell below the standard of a reasonably competent attorney, the Kolschefskys could not have been injured where they no longer owned any medical malpractice claim and would have had no standing to assert such a claim in court.

CONCLUSION

[¶17] Because the Kolschefskys' bank-ruptey filing terminated both their contractual relationship with their attorney and their property interest in a pre-petition medical malpractice claim, they had no standing to pursue either a legal malpractice claim against their attorney or a medical malpractice claim against the medical provider. Summary judgment is appropriate, not because there are no contested issues of fact, but because the contested factual issues are not material to the controlling and dispositive federal law. We need not address other issues raised by the Kolschefskys. Summary judgment in favor of Harris is affirmed.

HILL, Chief Justice,

dissenting.

[¶18] I respectfully dissent because I am not convinced that the bankruptey statutes are intended to provide the kind of protection to an alleged tortfeasor that the majority ascribes to them. It is my conclusion that the standard of review governing summary judgment, the existence of genuine issues of material fact, and the applicable law require that this case be remanded for trial wherein the fact-finder will have to resolve the import of those disputed facts.

[¶19] I agree with the standard of review articulated by the majority, but I do not think the opinion is faithful to that standard in analyzing this case, nor do I coneur with the law the majority applies to the facts of the case.

[¶20] The one truly undisputed fact is that the Kolschefskys, acting pro se, filed a bankruptey petition in November of 1999, and they received the protections available to debtors in the bankruptcy court. In their bankruptcy petition, they did not list as an asset a medical malpractice claim against a chiropractor who had treated Mrs. Kolschef-sky, nor did they list a legal malpractice claim against Harris. Of course, at that point they did not know that they had such a claim against Harris because the gravamen of their complaint against him did not occur until more than six months after the filing of the bankruptey petition.

[¶21] Citing 11 U.S.C. § 365(d)(1), the majority appears to conclude that the bank-ruptey proceeding operated to relieve Harris of any obligation he had to the Kolschefskys, as their attorney in the medical malpractice action, even though Harris continued to act in that matter until into the late spring and early summer of the year 2000.

[¶22] The majority comes close to acknowledging that Harris may never have effectively terminated his contract with the Kolschefskys (because such a termination would have had to have been in writing, and it was not), may have reaffirmed his pre-November 1999 contract with the Kolschef-skys through his actions in continuing to represent them, and/or that he may have entered into a new contract with them. These are, of course, some of the factual issues that need to be resolved by a fact-finder. However, perhaps in recognition of these factual issues, the majority then retreats to another basis on which the summary judgment order should be affirmed.

[¶23] In 118 of the majority's opinion, this second basis for affirmance is that, by operation of law, all assets of the Kolschef-skys went into the bankruptey estate, including all causes of action existing on the date of the petition, "whether or not a lawsuit has been commenced, and no matter how inchoate or unliquidated the underlying claim.... The estate exists by operation of law and is not limited to that property disclosed by the debtors on their bankruptcy schedules." Continuing, the majority concludes that the claim against Mrs. Kolschefsky's chiropractor became a part of the bankruptey estate and, therefore, she no longer had any interest whatever in it. I am not convineed that the authority cited entirely supports that proposition.

[¶24] However, the majority makes a secondary conclusion, which I do not think can stand serutiny at all: "Although not argued by Harris, the same analysis would apply to any legal malpractice claim against Harris that accrued prior to the bankruptcy filing date. This result occurs by operation of law, regardless of the intent or understanding of the parties." In my view, that conclusion is not consonant with the facts (i.e., Harris did not commit his malpractice until the middle of the year 2000 when he let the statute of limitations run on Mrs. Kol-schefsky's claim against her chiropractor), nor is the proposition supported by substantiating authority. It is my opinion that the pertinent authority is to the contrary. Legal malpractice claims are not the sort of execu-tory contracts that are included within the reach of 11 U.S.C. § 865(d)(1). Although I agree with the majority that the claim against the chiropractor is an asset of the bankruptcy estate, and apparently is being treated as such while this litigation proceeds, some portions of that claim also may well not become assets of the bankruptey estate. 11 U.S.C. §§ 522(d)(11)(D) and (E) (1993) (exempting a payment, not to exceed $7,500, on account of personal bodily injury, not including pain and suffering or compensation for actual pecuniary loss, as well as payments for loss of future earnings). 2 David D. Epstein, Steve H. Nickles, and James J. White, Bank-ruptey, §§ 8-18 at 510-515 (1992); 11 USCS § 522, nn. 178-80 (1997); 11 USCS § 541, n. 72 (1997).

[¶25] However, that is beside the point because the medical malpractice claim is not at issue here. It is the legal malpractice claim that is now of immediate and practical importance to the Kolschefskys, and the pertinent authority holds that such a claim is not affected by a bankruptcy filing. Because it is a uniquely personal matter, a cause of action for legal malpractice is not assignable and, therefore, does not become a part of the estate of the bankrupt. Christison v. Jones, 83 Ill. App.3d 334, 39 Ill.Dec. 560, 405 N.E.2d 8, 11-12 (1980); Francis M. Dougherty, Annotation, Assignability of Claim for Legal Malpractice, 40 AL.RA" 684 (1985 and Supp.2001); and see 1 Epstein, Nickles, and White, supra, § 3-14b at 168-69.

[¶26] Finally, I do not think the bank-ruptey statutes have such a "long-arm" as to provide protection to an alleged tortfeasor under cireumstances such as these. The bankruptey statutes serve very strictly defined purposes and principally affect the debtor-creditor relationship. The excerpts taken by the majority from the bankruptcy statutes are not designed to define or limit the sort of relationship, or the facts and cireumstances, that are at issue here. See generally Daniel R. Cowans, Bankruptcy Law and Practice, T" ed. (1998 and Supp. 2000). Reason is the soul of law, and when the reason of any particular law ceases, so does the law itself. GGV v. JLR, 2002 WY 19, ¶ 8, 39 P.3d 1066, ¶ 8 (Wyo.2002).

[¶27] I would reverse the order of the district court and remand for further proceedings consistent with what I have set out above.

BURKE, District Judge,

dissenting, with whom HILL, Chief Justice, joins.

[¶28] I respectfully dissent. I find that genuine issues of material fact exist which preclude summary judgment.

[¶29] For purposes of summary judgment we must provide all favorable inferences to be gleaned from the evidence to the party opposing the motion. In that vein, we must take as true the unrefuted opinion testimony of the Kolschefskys' expert. According to that expert, Mr. Harris breached his duties to the Kolschefskys by failing to properly and timely investigate the claim, failing to advise the Kolschefskys as to the applicable statute of limitations, failing to advise the Kolschefskys of the impact of bankruptcy upon the client's chiropractic malpractice claim, and failing to take action during the bankruptey to preserve the chiropractic malpractice claim after receiving notice that the bankruptcy had been filed. There is factual support for those opinions in the record.

[¶30] The record demonstrates that Harris was aware that the Kolschefskys were having financial difficulties. As a result of Mrs. Kolschefsky's chiropractic malpractice injury, the Kolschefskys accumulated medical bills amounting to $30,000. In a discussion with Harris, Mr. Kolschefsky brought up the subject of bankruptcy and Harris told him that it might not be a bad idea. During the course of their relationship, Harris sent numerous letters to creditors on behalf of the Kolschefskys to stave off collection efforts while he investigated the chiropractic malpractice claim. Harris never advised the Kolschefskys that filing bankruptcy could negatively impact their chiropractic malpractice claim.

[¶31] Facts supporting an ongoing attorney-client relationship post-bankruptcy also appear in the record. The Kolschefskys believed that Harris continued to represent them and was pursuing a claim against the chiropractor, even after the bankruptcy. Despite the bankruptcy filing in November, 1999, Harris sent a letter on April 25, 2000, to a treating neurologist. In the letter, Harris requested information about Mrs. Kol-schefsky, referring to her as his client. In a follow-up telephone conversation on May 1, 2000, Harris informed the neurologist that he was not qualified to give an expert opinion in Mrs. Kolschefsky's case but asked if he could identify any chiropractors who could give an opinion. Harris never communicated any termination of his representation to the Kol-schefskys in writing.

[¶ 32] I do not take issue with the majority's analysis that by operation of bankruptcy law the executory fee agreement was breached by the Kolschefskys. However, I disagree that the effect of that breach resulted, as a matter of law, in the termination of the attorney-client relationship. The majority equates the duty to perform as specified in the contract with the professional duty arising from the attorney-client relationship. I discern a difference. The latter imposes an obligation to meet a standard of care. The standard of care is not set forth in the fee agreement and must be established by expert testimony.

[¶33] The majority summarily concludes that the breach ended the attorney-client relationship because it constituted an anticipatory repudiation of the attorney-client contract and relieved Harris from further responsibilities on behalf of the Kolschefskys. I interpret the facts differently, and based upon his conduct, so did Harris. He continued to hold himself out as the Kolschefskys' attorney months after the bankruptcy. Harris never provided written notice of termination and did not return the Kolschefskys' file to them until the Kolschefskys' sought new counsel. Additionally, Harris failed to raise bankruptcy as an affirmative defense in the legal malpractice case for many months and then only after the deadline for disposi-tive motions had passed.

[¶ 34] We have recognized that the existence of an attorney-client relationship will often present an issue for the trier of fact. Meyer v. Mulligan, 889 P.2d 509, 513-514 (Wyo.1995). In this case material issues of fact concerning the duration of the attorney-client relationship render summary judgment inappropriate. The doctrine of anticipatory repudiation should not be applied when the facts are equivocal as to whether the party on the receiving end of a breach considered it a repudiation of the contract. Rather, the Kolschefskys' bankruptcy is more properly viewed as an element of damage incurred by them, rather than as an event which eliminates any possible claims the Kolchevskys may have against Harris, eg., Laiben v. Roberts, 936 S.W.2d 220 (Mo.Ct.App.1996).

[¶35] I also cannot agree that the Kol-schefskys lacked standing to pursue their claim against Harris.

[¶36] In concluding that Harris did not owe any duties to the Kolschefskys, the majority limits its inquiry to the point in time that the statute of limitations lapsed, after the bankruptey was concluded. The majority concludes that any pre-petition misconduct by Harris is not actionable because it became, and remains, property of the bankruptcy estate. I disagree. The cause of action resulting from those acts did not become part of the bankruptey estate because it was not a legally cognizable interest when the Kolschefskys filed bankruptey.

[¶37] A bankruptcy estate includes "all legal or equitable interests of the debtor in property as of the commencement of the case...." 11 U.S.C. § 541(a). The majority states that this includes "all causes of action existing on the petition date, whether or not a lawsuit has been commenced, and no matter how inchoate or unliquidated the underlying claim." I agree that causes of action become part of the bankruptcy estate, but I do not believe that the authority cited supports the conclusion that the Kolschefskys had a cause of action against Harris when they filed for bankruptey.

[¶38] The majority cites DKBP v. Dorr, Bentley & Pecha, 841 P.2d 811, 815 (Wyo.1992) to demonstrate that the Kolschefskys had an interest in property, that being an unliquidated or inchoate claim against Harris. However, what we stated in that case was:

The filing of the petition in the bank-ruptey court on February 1, 1990, created an estate. That estate consisted of "all legal or equitable interests of the debtor [D & A] in property" wherever located and by whomever held. 11 U.8.0. § 541 (1988) (emphasis added). This includes any and all causes of action existing on the petition date. Delgado Oil, Inc. v. Torres, 785 F.2d 857 (10th Cir.1986).
Property of the estate includes all of the debtor's inchoate and unliquidated interests. United States v. Whiting Pools, Inc., 462 U.S. 198, 204-05 n. 8, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983) (Estate succeeds to no more or greater causes of action against third parties than those held by the debtor.) Property of the estate includes "any interest in property that the estate acquires after the commencement of the case." 11 U.S.C. § 541 (a)(7). Property of the estate in a Chapter 7 case of a non-individual includes all property, income, receivables, causes of action, etc., generated or acquired during a preceding Chapter 11 case. Id.
As a partner in DKBP, D & A had an interest in managing that partnership. See, e.g., Wyo. Stat. § 17-18-501(ii)(1989). That management interest passed to the estate when D & A filed for bankruptcy. In re Cardinal Industries, Inc., 105 B.R. 834, supplemented 109 B.R. 748 (Bankr. S$.D.Ohio 1989).
When a cause of action accrues before the bankruptcy petition, that claim is property of the estate, regardless of whether or not a lawsuit based upon that cause of action had been commenced. In re James, 120 BR. 802 (E.D0.P4.1990); In re E.F. Hutton Southwest Properties, II, Ltd., 108 BR. 808 (N.D.Tex.1989) - In re Johns-Manville Corporation, 57 BR. 680 (S.D.N.Y.1986).

Id. (Bold emphasis added.)

[¶39] We acknowledged that a cause of action is a form of property encompassed by the bankruptey code and that a trustee succeeds to a cause of action held by a debtor at the time the bankruptey petition is filed. Id. at 816. (citing Cain v. Hyatt, 101 BR. 440 (E.D.Pa.1989)).

[¶40] In DKBP, we cited a footnote from United States v. Whiting Pools, Inc., 462 U.S. 198, 204-05, 103 S.Ct. 2809, 76 L.Ed.2d 515 (1983) for the proposition that a debtor's bankruptcy estate includes inchoate and unliquidated interests. 841 P.2d at 815. However, we clarified that statement with a parenthetical explaining that the "[elstate succeeds to no more or greater causes of action against third parties than those held by the debtor." Id. Moreover, while the seope of 11 U.S.C. § 541(a) is broad, it is not intended to expand the debtor's rights against others more than they exist at the commencement of the case. Whiting Pools, Inc., 462 U.S. at 204-5, n. 8, 103 S.Ct. 2809; see also S.Rep. No. 95-989, 95" Cong. 2" Sess. at 1, 82, U.S8.Code Cong. & Admin.News 1978 at 5787, 5868.

[¶41] The analysis in DKBP which speaks of a cause of action is largely ignored by the majority. Not surprisingly then, the majority does not examine whether the Kol-schefskys had a cause of action against Harris when they filed for bankruptcy.

[¶42] It is state law, and not federal bankruptcy law, which determines whether a debtor has an interest in a particular item of property and the extent of that interest at the commencement of the bankruptcy case. Butner v. United States, 440 U.S. 48, 99 S.Ct. 914, 59 LEd.2d 186 (1979); Ellwanger v. Budsberg (In re Ellwanger), 140 Bankr. 891, 900 (Bankr.W.D. Washington 1992).

[¶48] In Wyoming, a cause of action accrues only when forces wrongfully put in motion produce injury. Duke v. Housen, 589 P.2d 334, 343 (Wyo.1979) cert. denied 444 U.S. 863, 100 S.Ct. 132, 62 L.Ed.2d 86; Cross v. Berg Lumber Company, 7 P.3d 922, 980 (Wyo.2000). We have recognized that a cause of action exists when the plaintiff could have first filed and prosecuted the action to successful completion. Gillis v. F & A Enterprises, 934 P.2d 1253, 1255 (Wyo.1997).

[¶44] The Kolschefskys' claim against Harris is one for damages based upon legal malpractice. A cause of action for legal malpractice based upon a breach of a professional duty is a tort. Rino v. Mead, 2002 WY 144, ¶16 n. 1, 55 P.3d 18 ¶16 n. 1 (Wyo.2002). A tort is not complete and actionable until all of the elements of the tort: duty, breach, proximate cause and damages are present. Nowotny v. L & B Contract Industries, Inc., 933 P.2d 452 (Wyo.1997). The Kolschefskys could not have brought a malpractice claim against Harris as of the date they filed for bankruptcy because all of the elements of the tort were not yet present. The Kolschefskys claim damages resulting from their discharge in bankruptey and from the loss of their chiropractic malpractice claim. These damages did not arise until after the bankruptcy was filed.

[¶45] The Kolschefskys claim that Harris' failure to properly advise them and diligently pursue their chiropractic malpractice claim forced them to file bankruptcy. Questions of fact appear in the record concerning whether actions of Harris caused or contributed to the bankruptey filing. A question also exists concerning the appropriate standard of care involved in representing a client with a personal injury claim who is in financial distress. The Kolschefskys' expert opines that under these cireumstances, the standard of care requires counseling that bankruptcy could impact the personal injury claim. If attributable to Harris, any damages resulting from the discharge in bank-ruptey could not have occurred until the bankruptey was concluded. Laiben, 986 S.W.2d 220.

[¶46] As to the chiropractic malpractice claim, I agree with the majority that it remains property of the bankruptcy estate. The damage suffered by the Kolschefskys is the loss of that claim. Arguably, the Kol-schefskys first suffered damage immediately after the filing of the bankruptey when the ownership of their chiropractic malpractice claim was transferred to their bankruptcy estate. Alternatively, damages may have arisen when the statute of limitations elapsed. Regardless of when the damages arose after the bankruptcy filing, damages did not exist prior to the filing.

[¶47] A cause of action against Harris did not exist as of commencement of the bankruptcy because the Kolschefskys did not incur any damages until after the bankruptey was filed. Accordingly, the cause of action against Harris never became property of the bankruptcy estate. The Kolschefskys were the rightful owners of the legal malpractice claim when they filed their complaint against Harris.

[¶ 48] The district court erred in granting the Defendants' motion for summary judgment. I would reverse and remand for further proceedings.

      . Construing, or deciphering, a statute such as 11 U.S.C. § 365 is a daunting task. The statute itself is nine pages long (in USCS), and the interpretive notes and decisions section associated with that statute take up over 175 pages. Merely as an example, I point out that the general purpose of that section is to allow a debtor to reject an executory contract in order to relieve the bankruptcy estate of burdensome obligations while at the same time providing a means where- - by the debtor can force others to continue to do business with it when bankruptcy filings might otherwise make them reluctant to do so. 11 USCS § 365, n. 2 (1995); Chateaugay Corporation v. LTV Steel Company, 10 F.3d 944, 954-55 (2nd Cir.1993). While § 365 may "speak" to the issues in this case in some way I am unable to ascertain, I am at least convinced that, to the extent it speaks, it does not say what the majority attributes to it.

      . The majority does not address the Kolschef-skys' assertion that the district court abused its discretion by considering the late-filed motion. I agree that we are unable to review this issue because the Kolschefskys' brief cites to documents that do not appear in the record on appeal. However, I find that Harris' failure to raise the bankruptcy issue until very late in the proceedings indicates that Harris did not ascribe to the bankruptcy the significance that the majority does in its opinion.

      . However, the claim may not have been truly lost at that point. There is a possibility that the loss of ownership of the claim may have been remedied before the statute of limitations passed. In the opinion of Kolschefskys' expert, an attorney in Harris' position could pursue several options to recover a claim from the bankruptcy estate. Harris could have sought to recover the claim from the bankruptcy estate by either offering to purchase the claim or requesting that the trustee abandon the claim back to the Kolschef-skys. I consider the availability and likely success of any of these options suitable issues for trial.


author: KAUTZ, District Judge.

text:
    2003 WY 85
    Joseph R. HAMMONS and Darlene S. Hammons, Appellants (Plaintiffs), v. TABLE MOUNTAIN RANCHES OWNERS ASSOCIATION, INC., a Wyoming Corporation, Appellee (Defendant).
    No. 01-151.
    Supreme Court of Wyoming.
    July 15, 2003.
    Alexander K. Davison and Wendy J. Curtis of Patton & Davison, Cheyenne, Wyoming, Representing Appellants. Argument by Mr. Davison.
    Julie Nye Tiedeken of Tiedeken Law Offices, Cheyenne, Wyoming, Representing Ap-pellee.
    Before HILL, C.J., and LEHMAN , KITE, and VOIGT, JJ., and KAUTZ, D.J.

       Chief Justice at time of oral argument.

   KAUTZ, District Judge.

[¶1] This case considers whether an "Architectural Control Committee" properly denied Appellants', Joseph R. Hammons and Darlene 8. Hammons (the Hammons), application to place a modular home in Table Mountain Ranches, a subdivision in Laramie County. The district court determined that covenants, which specifically excluded modu-lars in Table Mountain Ranches, were invalidly adopted. However, it found that prior covenants, still in effect, authorized rejection of the Hammons' plans on "aesthetic" grounds. The district court also found that the Architectural Control Committee acted reasonably in denying the plans.

[¶2] We conclude that the district court properly applied the law and that sufficient evidence supports its findings and conclusions. We affirm the trial court's declaratory judgment.

ISSUES

[¶3] The Hammons list these issues:

1. Did the District Court properly apply Wyoming Law of Aesthetic Covenants when determining that the decision of the Board of Table Mountain Ranches was reasonable?
2. Is the District Court's reliance upon the testimony of the architectural control committee clearly erroneous considering its order invalidating the 1998 covenants?

The Appellee, Table Mountain Ranches Owners Association, Inc. (TMROA) rephrases the issues as follows:

Issue 1 Did the Trial Court properly hold that the original purpose of the covenants can still be accomplished and thus the covenants have not been abandoned?
Issue 2 Did the Trial Court properly hold that the actions of the Architectural Control Committee in disapproving the Ham-mons' proposed home was reasonable and made in good faith?
Issue 3 a) Since the membership of the Architectural Control Committee was not raised in front of the Trial Court, should it be considered by the Supreme Court on appeal?
b) Did the Trial Court properly hold that the decision of the Architectural Control Committee would have been the same under the 1973 version of the covenants and should stand even though the 1998 covenants were found to be invalid?

FACTS

[¶4] Table Mountain Ranches is a subdivision in Laramie County. In 1973 its developers filed a declaration of protective covenants. They made minor adjustments to those covenants in 1974 and 1977. (The 1973 covenants with the 1974 and 1977 amendments are referred to herein as the 1977 covenants). The 1977 covenants created an Architectural Control Committee (&.C.C.), whose declared purpose was

[tlo assure, through intelligent architectural control of building design, placement and construction, that Table Mountain Ranches shall become and remain an attractive community, and to uphold and enhance property values.

The A.C.C. consisted of three members. The subdivider appointed one member, and owners of complete dwellings in the subdivision selected the other two. After 90% of the tracts in the subdivision were sold, the "homeowners group" selected all three A.C.C. members. Initially, a three-member A.C.C. functioned. At some point, however, the Homeowner's Association Board assumed the role of the A.C.C.

[¶5] The covenants required that lot owners submit their plans and obtain written approval from the A.C.C. before they build. The A.C.C. had broad latitude in deciding what plans to approve or disapprove under the 1977 covenants. Those covenants stated, "[dlisapproval of plans and specifications may be based on any grounds including purely aesthetic grounds."

[¶6] Initially, the A.C.C. excluded prefabricated buildings except for "Boise Cascade Homes." The evidence established that Boise Cascades more resembled stick-built homes than prefabricated homes. Through 1993 the A.C.C. excluded modular homes. From 1994 to 1996 the A.C.C. napped rather than enforced the covenants of the subdivision and permitted prefabricated homes by failing to consider or respond to applications. After this lapse, the subdivision contained 107 undeveloped lots, 57 stick-built homes, and 11 prefabricated homes. In 1996, a more vigilant A.C.C. assumed the helm. Since then, it has consistently disapproved prefab homes with rectangular low-pitched roofs. It took legal action and forced the removal of a "double-wide" or modular prefabricated home.

[¶7] In 1998, the TMROA attempted to amend the covenants of the subdivision. For purposes of this case, the 1998 covenants contained two significant changes. First, they gave the TMROA board the role of the A.C.C. This change reflected the practice that had been followed for some time. Second, the 1998 covenants added this language: "No mobile, manufactured, modular or site built homes resembling basic rectangular low pitch roof double wide manufactured or modular homes will be authorized."

[¶8] The Hammons bought two lots in the Table Mountain subdivision in 1995. On May 3, 1999, they sought approval for a prefabricated home. The A.C.C. denied approval twice, once after some members viewed a sample home, citing aesthetic grounds. Thereafter, the Hammons filed this case. Their complaint alleged that the 1998 amendments to the covenants were invalid, and that their plans would have been approved under the 1977 covenants.

PROCEDURAL HISTORY

[¶9] The Hammons sued for declaratory judgment. They sought (1) a declaration that the 1998 covenants were invalid, (2) a declaration that they were entitled to have their home plans approved, irrespective of which covenants governed, and (8) damages. The trial court invalidated the 1998 covenants, held that the 1977 covenants had not been abandoned, and held that under them, the A.C.C. acted reasonably and within their authority in denying the Hammons' plans.

[¶10] Inspired by the trial court's invalidation of the 1998 covenants, the Hammons asked the trial court to amend its Findings and Conclusions. They argued that because it invalidated the 1998 covenants, the court should also have disregarded the testimony of the Board as to whether the Hammonsg' home would have been disapproved under the older covenants. The Hammons asserted that because the 1977 covenants provided a different A.C.C. membership than the 1998 covenants, the TMROA could not speak as the A.C.C. under the older covenants. Several TMROA board members testified that they would not approve the Hammons' plans under either set of covenants.

[¶11] TMROA submitted a judgment under W.R.C.P. 58, to which the Hammons filed an objection, restating the grounds from their motion to amend. The trial court considered the motions on March 1, 2001, and entered the declaratory judgment without the Hammonsg' proposed amendments. The Hammons then filed both a Rule 50(b) motion and a motion nominally based on Rules 59(a)(6) and (e). However, in a strange turn, they withdrew those motions and timely filed this appeal.

STANDARD OF REVIEW

[¶12] The district court's decisions as to whether the covenants were abandoned, and whether the board acted reasonably, combine questions of law and fact. Questions of law are reviewed de movo. Stansbury v. Heiduck, 961 P.2d 977, 978 (Wyo.1998). A district court's findings of fact will be upheld unless the findings are clearly erroneous. Mathis v. Wendling, 962 P.2d 160, 163 (Wyo.1998). A finding is clearly erroneous 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." Springer v. Blue Cross and Blue Shield of Wyoming, 944 P.2d 1173, 1176 (Wyo.1997) (citing Hopper v. All Pet Animal Clinic, Inc., 861 P.2d 531, 538 (Wyo.1993)).

ANALYSIS

Were the Covenants Governing the Table Mountain Ranches Subdivision Abandoned?

[¶13] The Hammons claim that TMROA lost the right to enforce, or abandoned, the "aesthetic" provision in the 1977 covenants because other prefabricated homes were built in the subdivision.

[¶14] A protective covenant is abandoned by failure to enforce that covenant when the covenant is violated, the violations are ignored or acquiesced to, and the violations are

. so great, or so fundamental or radical as to neutralize the benefits of the restriction to the point of defeating the purpose of the covenant. In other words, the violations must be so substantial as to support a finding that the usefulness of the covenant has been destroyed, or that the covenant has become valueless and onerous to the property owners.

Keller v. Branton, 667 P.2d 650, 654 (Wyo.1988) (citing Riley v. Stoves, 22 Ariz.App. 223, 526 P.2d 747, 68 A.L.R.3d 1229 (1974)). The trial court properly utilized the standard from Keller in deciding the abandonment issue.

[¶15] The purpose and benefit of the "aesthetic" provision in the 1977 covenants is specified in the covenants themselves. The covenants specifically state that their intent is to "protect and enhance the value, desirability and attractiveness" of the subdivision.

[¶16] The record contains considerable evidence indicating that the purpose of protecting and enhancing the value of property in the subdivision by excluding certain prefabricated homes remains viable. Although 11 prefabricated homes now exist there, there are 57 stick-built homes and the balance of the 217 lots are undeveloped. The evidence indicated that the manner in which those remaining lots are developed could have a significant impact on the value of the existing homes. The trial court recognized this evidence and held that the "aesthetic" covenant was not abandoned. We find that this decision is supported by evidence and not "clearly erroneous."

Should this Court Consider Membership of the A.C.C. When that Issue Was Not Presented to the Trial Court Until After the Trial Court's Decision?

[¶17] This Court will ordinarily entertain only arguments raised in the court below. Cooper v. Town of Pinedale, 1 P.3d 1197, 1208 (Wyo.2000). Exceptions to this rule exist if the argument is jurisdictional, or if it is "of such a fundamental nature that it must be considered." Id. (citing WW Enterprises v. City of Cheyenne, 956 P.2d 353, 356 (Wyo.1998) and Bredthauer v. TSP, 864 P.2d 442, 447 (Wyo.1993)).

[¶18] The Hammons did not allege in their complaint that the selection of A.C.C. members under the 1977 covenants was invalid. They did not assert that if the 1998 covenants were improperly adopted, the court should order a different committee to review the Hammong' plans. The Hammons did not present this issue to the trial court, and the trial court did not consider it. They asked only for a declaration that their plans should be approved under the 1973 covenants.

[¶19] The issue about composition of the A.C.C. is not jurisdictional. It is not so "fundamental" that it must be considered. The Hammons did not raise this issue until after the trial court decided the case. This Court will not consider the issue now.

[¶20] The Hammons imply that it is logically impossible for the trial court to invalidate the 1998 covenants, but then to consider testimony from the A.C.C. formed under the 1998 covenants. That testimony indicated that the 1998 A.C.C. would not approve the Hammons' plans even under the 1977 covenants. The evidence established, however, that the composition of the A.C.C. under the 1998 covenants was the same as had been put in practice before the 1998 amendments. The Hammons did not assert that the A.C.C. membership was invalid before the 1998 amendments, and we will not consider that issue now.

[¶21] After the trial court issued its decision, the Hammons attempted to raise their questions about the A.C.C. membership through motions. Then they withdrew their motions. Those motions did not timely raise an issue that should have been presented before trial. A motion to alter or amend "cannot be used to raise arguments which could, and should, have been made before judgment issued." Beyah v. Murphy, 825 F.Supp. 213, 214 (E.D.Wis.1993); FDIC. v. World University Inc., 978 F.2d 10, 16 (1st Cir.1992). Further, Appellants withdrew the motions. A motion withdrawn leaves the record as it stood prior to the filing of the motion, i.e., as though it had not been made. In re Stoute, 91 A.D.2d 1043, 458 N.Y.S.2d 640, 641 (1988); People v. Steinhoff, 38 Mich. App. 135, 195 N.W.2d 780, 781 (1972); 56 Am.Jur.2d Motions, Rules, and Orders § 82 (2000).

Did the Trial Court Properly Hold that the Actions of the Architectural Control Committee in Disapproving the Hammons' Proposed Home was Reasonable and Made In Good Faith?

[¶22] Covenants "are contractual in nature and are to be interpreted in accordance with the principles of contract law." McHyron v. Grand Teton Lodge Company, 899 P.2d 38, 40 (Wyo.1995) (citing Kindler v. Anderson, 433 P2d 268 (Wyo.1967)). The district court invalidated the 1998 covenants because of procedural defects in the amendment process. Neither side appealed that ruling. Consequently, the prior covenants remained effective. They said:

Authority: No structure, including walls and fences shall be erected, converted, placed, added to or altered on any lot until the construction plans, specification (to include samples of exterior materials and colors to be used) and a plan showing the location of the structure have been approved in writing by the Architectural Control Committee. Consideration will be given to quality of workmanship and materials, harmony of external design with existing structure, location with respect to other structures (actual and planned), topography and to finished grade elevation. Disapproval of plans and specifications may be based on any grounds - including - purely - aesthetic grounds. - Structural color schemes will be compatible with the natural environment of the subdivision. © Natural or earth colors will be required. [Emphasis added.]

[¶23] "Aesthetic grounds," should not be a carte blanche for arbitrary use of power by a homeowners' association. By that same token, courts should not be arbiters of taste. The majority approach in other states requires decisions under a consent-to-build covenant to be reasonable, eg., Riss v. Angel, 131 Wash.2d 612, 934 P.2d 669, 678 (1997); Trieweiler v. Spicher, 254 Mont. 321, 838 P.2d 382, 385 (1992) (citing nine cases from eight states); . see also McHuron, 899 P.2d at 43-44 (Golden, C.J., dissenting) (discussing the reasonableness approach). We adopt the requirement of reasonableness, even if the covenants do not specifically impose such a requirement.

[¶24] The trial court properly reviewed the A.C.C.'s denial of the Hammong' plans to determine if that decision was reasonably made. The trial court's finding of reasonableness was a finding of fact. Trieweiler, 838 P.2d at 385. That finding of fact will be upheld unless it is clearly erroneous. Mathis, 962 P.2d at 163. Such error is absent here.

[¶25] The district court found that, "[tlhe decision of the A.C.C. was not based upon caprice, but was a good faith attempt to carry out the original intent of the developers of the subdivision." The court then went on to discuss the incompatibility between the Hammons' proposed prefabricated home and the character of the subdivision. There was evidence directly supporting the trial court's finding. A vast majority of the other homes in the subdivision were not modulars. Witnesses established that additional modulars would negatively impact the value of existing homes and would change the nature of the subdivision. The A.C.C. did not single out the Hammons for rejection, but consistently denied applications to erect modular homes. This Court will not substitute its judgment on the value of this evidence for that of the A.C.C. or the trial court. The trial court's finding of reasonableness was not clearly erroneous. We affirm the trial court's finding that the A.C.C. acted reasonably.

[¶26] The Hammons argue that the district court improperly employed a test that balanced their interests against TMROA's interests when it determined reasonableness. Although the district court's decision letter stated that "their (Hammons') plight ... must be ... weighed against the aspirations of the homeowners ..." and found in favor of TMROA "after weighing the factors," it did not employ a balancing of interests test. The "weighing" language does not demonstrate a balancing test, but only shows the trial court's serious consideration of the positions taken by each side. The district court's decision letter properly addresses the legal standard for enforceability of an aesthetic covenant. It discusses evidence that supports reasonableness in the A.C.C.'s decision.

CONCLUSION

[¶27] Sufficient evidence supports the trial court's findings that the aesthetic covenant was not abandoned, and that the A.C.C. of TMROA acted reasonably when it denied the Hammons' application to install a modular home. The Hammons did not claim that the A.C.C. membership was improper in the trial court, and this Court will not consider that new issue now. The judgment of the district court is affirmed.

      . The withdrawal of the Hammons' post-trial motions is not a direct issue in this case. We note, however, that the Hammons incorrectly believed they could not appeal while a motion was pending. The Hammons relied on Rutledge v. Vonfeldt, 564 P.2d 350 (Wyo.1977) for this belief. We decided Rutledge before adopting the Wyoming Rules of Appellate Procedure. WRAP 2.04 solves the Hammons' concerns under Ru-ledge by preserving the effect of a premature notice of appeal.