author: KITE, Justice.

text:
    2004 WY 5
    In the Matter of the ESTATE OF Vernon R. DRWENSKI, Deceased: Erin Marie Connely, as Personal Representative of the Estate of Vernon R. Drwenski; Erin Marie Connely, Individually; and Drwenski, LLC, a Limited Liability Company, Appellants (Plaintiffs), v. M. Scott McColloch, Esq.; McColloch and Burns, a Partnership; and Michelle McColloch Burns, Esq., Appellees (Defendants). Erin Marie Connely, as Personal Representative of the Estate of Vernon R. Drwenski; Erin Marie Connely, Individually; and Drwenski, LLC, a Limited Liability Company, Appellants (Plaintiffs), v. M. Scott McColloch, Esq.; McColloch and Burns, a Partnership; and Michelle McColloch Burns, Esq., Appellees (Defendants).
    Nos. 03-29, 03-30.
    Supreme Court of Wyoming.
    Jan. 28, 2004.

      Representing Appellants: Eldon E. Silver-man of Preeo Silverman Green & Egle, P.C., Denver, Colorado.
    Representing Appellees: Timothy W. Miller of Reeves <& Miller Park Street Law Office, Casper, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   KITE, Justice.

[¶ 1] Vernon Drwenski died before his divorce was finalized. As a result, his widow, Trudy Drwenski, inherited money from the estate she would not have inherited if she and Mr. Drwenski had been divorced. Mr. Drwenski’s daughter, Erin Connely, sued her father’s divorce attorney, Scott McColloch, because he failed to finalize the divorce before Mr. Drwenski died. The district court granted Mr. McColloch’s motion for summary judgment finding he owed no duty to Ms. Connely or to the estate. We affirm the district court’s judgment.

ISSUES

[¶ 2] Ms. Connely raises the following issues:

1. Were there adequate facts in the record below to show that Connely individually, as a third-party beneficiary of her father, had a legal right to [make a] claim against Attorneys for legal malpractice occurring during the lifetime of her father?
2. Did Connely, as Personal Representative of the Estate, have a cause of action to pursue the attorney malpractice case under the Wyoming survival statute?
3. Should this matter be remanded in that the existence of a duty in a complex case such as this is a mixed issue of fact and law?

[¶ 3] Mr. McColloch rephrases the issues as:

1. Whether a lawyer who represents a client in a divorce owes a duty to his client’s child?
2. Whether an estate may pursue a claim where it has no damages?

[¶ 4] In her reply brief, Ms. Connely raises the following issues:

1. The duty of an attorney to an intended third-party beneficiary has yet to be decided in Wyoming and its acceptance would be consistent with good public policy and past Wyoming precedent.
2. The cause of action for legal malpractice accrued prior to the client’s death and thus the claims survive in his estate.

FACTS

[¶ 5] In 1999, Mr. Drwenski, suffering from cirrhosis of the liver, was trying to get his life in order. First, he wanted a divorce from his wife, Trudy Drwenski. He hired Mr. McColloch to represent him in this matter, and in April of 1999, he filed for divorce from Mrs. Drwenski.

[¶ 6] Four months later, Mr. Drwenski had a falling out with his daughter, Rian Smith, and decided he wanted to change his will. On September 2, 1999, he executed a new will leaving the bulk of his estate to another daughter, Ms. Connely, and named her personal representative for the estate. Mr. Drwenski’s new will recited the fact that he was seeking a divorce and recognized that Mrs. Drwenski would be entitled to twenty-five percent of his estate under Wyoming’s elective share statute in the event his divorce was not final at the time of his death.

[¶ 7] In September of 1999, Mrs. Drwen-ski offered to settle the divorce for $145,000. Armed with a power of attorney, Ms. Connely encouraged Mr. Drwenski to accept the offer. He chose not to do so. Instead, he made a counter-offer of $100,000, which he later withdrew.

[¶ 8] Mr. Drwenski died on November 30, 1999, before the divorce was finalized, leaving an estate valued at over three million dollars. Because Mr. Drwenski was not divorced on the date of his death, Mrs. Drwenski was entitled to twenty-five percent of his estate under Wyoming’s elective share statute.

[¶ 9] Ms. Connely sued Mr. McColloch alleging, among other things, that he breached his duty of responsibility to Ms. Connely and to the estate. The gravamen of her complaint was that Mr. McColloch failed to do anything to obtain the divorce from the time he was retained in April 1999 until the time of Mr. Drwenski’s death six months later. Ms. Connely alleged Mr. McColloch knew that Mr. Drwenski’s marriage to Mrs. Drwenski took place “late in life,” his health was fragile, he was terminally ill, and given his particular vulnerability, he was in need of the utmost prompt, thorough, and competent legal representation. The complaint further alleged, as evidence of Mr. McColloch’s breach of his duty, that no discovery was undertaken, Mr. Drwenski’s deposition was never taken, no request for a scheduling conference or trial date was ever made, and essentially no action was taken at all to further the progress of the divorce proceeding.

[¶ 10] The district court granted Mr. McColloch’s motion for partial summary judgment holding that he had no legal duty under Wyoming law to a nonclient under these circumstances. Further, the district court held the estate was not damaged because it did not suffer a financial loss.

[¶ 11] This appeal followed.

STANDARD OF REVIEW

[¶ 12] Our standard for reviewing summary judgments is well established:

‘Summary judgment is appropriate when no genuine issue as to any material fact exists and the prevailing party is entitled to have a judgment as a matter of law. A genuine issue of material fact exists when a disputed fact, if it were proven, would have the effect of establishing or refuting an essential element of the cause of action or defense which the parties have asserted. We examine the record from the vantage point most favorable to the party who opposed the motion, and we give that party the benefit of all the favorable inferences which may fairly be drawn from the record. We evaluate the propriety of a summary judgment by employing the same standards and by using the same materials as were employed and used by the lower court. We do not accord any deference to the district court’s decision on issues of law.’

Mathewson v. City of Cheyenne, 2003 WY 10, ¶ 4, 61 P.3d 1229, ¶ 4 (Wyo.2003) (quoting Andersen v. Two Dot Ranch, Inc., 2002 WY 105, ¶ 10, 49 P.3d 1011, ¶ 10 (Wyo.2002)).

[¶ 13] This Court has stated that summary judgments are not favored, especially in negligence actions. See, for example, Roitz v. Kidman, 913 P.2d 431, 432 (Wyo.1996). This is particularly true in malpractice actions. DeHerrera v. Memorial Hospital of Carbon County, 590 P.2d 1342, 1345 (Wyo.1979). The mixed questions of law and fact usually involved in a negligence action concerning the existence of a duty, the standard of care and proximate cause “are ordinarily not susceptible to summary adjudication.” Hozian v. Weathermon, 821 P.2d 1297, 1298 (Wyo.1991). Whether a particular defendant’s actions have violated the required duty is generally a question for the jury. Bancroft v. Jagusch, 611 P.2d 819, 821 (Wyo.1980). The existence of a duty is, however, a question of law, “ ‘making an absence of duty the surest route to summary judgment in negligence actions.’ ” Schuler v. Community First National Bank, 999 P.2d 1303, 1306 (Wyo.2000) (quoting Daily v. Bone, 906 P.2d 1039, 1043 (1995)). One consequence of the fact that summary judgments are not favored in negligence actions is that, once granted, they are subject to “more exacting scrutiny” on appeal. Woodard v. Cook Ford Sales, Inc., 927 P.2d 1168, 1169 (Wyo.1996).

[¶ 14] Questions relating to the parties’ intent are usually factual, precluding summary judgment; however, where the parties’ intent is clear such that reasonable minds could not differ, summary judgment is appropriate. Cordero Mining Co. v. United States Fidelity and Guarantee Insurance Co., 2003 WY 48, ¶ 10, 67 P.3d 616, ¶ 10 (Wyo.2003); see also Examination Management Services, Inc. v. Kirschbaum, 927 P.2d 686 (Wyo.1996); Detroit Institute of Arts Founders Society v. Rose, 127 F.Supp.2d 117 (D.Conn.2001).

[¶ 15] A properly drawn inference contrary to direct testimony can serve to structure a genuine issue of material fact. This Court is required to review the record in the light most favorable to the non-moving party, affording to that party all favorable inferences which may be drawn from the facts presented in the record. However, we have also stated:

“Guess-work cannot be substituted for evidence or inference, for ‘an inference is the conclusion drawn on reason from premises established by proof. In a sense, it is the thing proved. Guess-work is not.’ Whitehouse v. Bolster, 95 Me. 458, 50 A. 240.” Wright v. Conway, 34 Wyo. 1, 241 P. 369, reh. denied 34 Wyo. 42, 51, 242 P. 1107, 1110 (1925).

Whipple v. Northern Wyoming Community College Foundation of Sheridan (Estate of Roosa), 753 P.2d 1028, 1034 (Wyo.1988).

DISCUSSION

Duty of Attorney to Third Party

[¶ 16] This case requires us to examine the current state of the law and determine whether there are any circumstances in which an attorney owes a duty to a nonclient. Over 120 years ago, the United States Supreme Court held that absent fraud, collusion, or privity of contract, an attorney is not liable to a third party for professional malpractice. Savings Bank v. Ward, 100 U.S. 195, 25 L.Ed. 621, (1879). Almost eighty years later, the California Supreme Court was the first to depart from that strict contractual privity rule. In Biakanja v. Irving, 49 Cal.2d 647, 320 P.2d 16 (1958), the court formulated the “balancing factors” test. This test is “closely related to the analysis and policy reasons used to justify permitting a third-party beneficiary to recover in a contract action.” Wilson-Cunningham v. Meyer, 16 Kan.App.2d 197, 820 P.2d 725, 729 (1991) (quoting Pizel v. Zuspann, 247 Kan. 54, 795 P.2d 42 (1990)). California’s balancing test requires the weighing of specific public policy considerations and closely mirrors the factors we adopted in Gates v. Richardson, 719 P.2d 193 - (Wyo.1986), to be utilized in considering whether new tort duties should be recognized. The Biakanja court held a duty to a nonclient could be found upon a balancing of the following six factors: (1) the extent to which the transaction was intended to affect the plaintiff; (2) the foreseeability of harm; (3) the degree of certainty that the plaintiff suffered injury; (4) the closeness of the connection between the defendant’s conduct and the injury suffered; (5) the moral blame attached to the defendant’s conduct; and (6) the policy of preventing future harm. Biakanja, 320 P.2d at 19.

[¶ 17] The California court tailored its balancing test three years later in Lucas v. Hamm, 56 Cal.2d 583, 15 Cal.Rptr. 821, 364 P.2d 685 (1961) by replacing the moral blame element with an inquiry into whether expansion of liability to the nonclient would place an undue burden on the legal profession. Id. 15 Cal.Rptr. 821, 364 P.2d at 688. The Lucas plaintiffs were beneficiaries under a will and brought an action against the attorney who prepared it. As a result of a drafting error, plaintiffs received a smaller share of the estate than the testator intended. The court held the lack of privity between plaintiffs and the attorney did not preclude the intended beneficiaries, who lost their testamentary rights because of an attorney’s failure to properly prepare the will, from recovering as third-party beneficiaries. Since Lucas, courts all over the country have applied the six factors to determine whether the circumstances warrant finding an attorney owes a duty to a nonclient'.

[¶ 18] However, the Lucas balancing test is not the only test utilized for determining attorney liability to nonelients. Some courts rely upon a third party beneficiary contract theory similar to that set forth in the Restatement (Second) of Contracts § 302 (1981). Jurisdictions adopting this approach include Illinois, Maryland, Oregon, and Pennsylvania. (Pelham v. Griesheimer, 93 Ill.App.3d 751, 49 Ill.Dec. 192, 417 N.E.2d 882 (1981) aff'd, 92 Ill.2d 13, 64 Ill.Dec. 544, 440 N.E.2d 96 (1982); Goerlich v. Courtney Industries, Inc., 84 Md.App. 660, 581 A.2d 825 (Ct.Spec.App.1990); Hale v. Groce, 304 Or. 281, 744 P.2d 1289 (1987); Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744 (1983)).

[¶ 19] Under the third party beneficiary analysis, the inquiry is whether the client’s intent to benefit the nonclient was the direct purpose of the attorney-client relationship. Flaherty v. Weinberg, 303 Md. 116, 492 A.2d 618, 625 (1985). The duty does not extend to those incidentally deriving an indirect benefit. Id. at 625-26. Neither does it extend to those in an adversarial relationship with the client. The third party beneficiary test requires the plaintiff to prove clearly that (1) the client intended to benefit the plaintiff by entering into a contract with the attorney, (2) the attorney breached his contract with the client by failing to perform under its terms, and (3) giving the plaintiff the right to stand “in the client’s shoes” would be appropriate to give effect to the intent of the contract. Guy, 459 A.2d at 750-752.

[¶20] Interestingly, commentators have suggested that even in those jurisdictions that apply California’s balancing approach, the predominant inquiry is generally whether a principal purpose of the attorney’s retention to provide legal services was to provide a specific benefit to the plaintiff — in other words, the third party beneficiary test. R. Mallen & V. Levit, Legal Malpractice § 81, at 161 (2nd ed.1981).

[¶ 21] For example, an Illinois court concluded that the balancing test might be appropriate in some situations, but required the divorced client’s children to prove that the attorney-client contract to obtain the divorce was entered into primarily for their benefit. Pelham 49 Ill.Dec. 192, 417 N.E.2d at 886. The Maryland court has gone even further in its adoption of the third party beneficiary test and added an additional requirement that the interests of the third party be identical to the interests of the client. Goerlich, 581 A.2d at 827. Arizona clarifies the third party beneficiary test and requires plaintiffs to prove negligence by the attorney toward the client, not just a deleterious effect upon the beneficiary due to the attorney’s negligence. Franko v. Mitchell, 158 Ariz. 391, 762 P.2d 1345 (Ct.App.1988).

[¶22] Only New York, Texas, Ohio and Nebraska continue to hold there is no recovery for nonclients. See, for example, Conti v. Polizzotto, 243 A.D.2d 672, 663 N.Y.S.2d 293 (N.Y.App.Div.1997); Barcelo v. Elliott, 923 S.W.2d 575 (Tex.1996); Simon v. Zipperstein, 32 Ohio St.3d 74, 512 N.E.2d 636 (1987); and St. Mary’s Church of Schuyler v. Tomek, 212 Neb. 728, 325 N.W.2d 164 (1982). Weighing whether to adopt such a duty, the South Dakota court explained the disinclination to allow a nonclient to sue an attorney for malpractice:

There are several reasons courts are reluctant to relax the rule of privity in attorney malpractice cases. First, the rule preserves an attorney’s duty of loyalty to and effective advocacy for the client. Simon v. Zipperstein, 32 Ohio St.3d 74, 512 N.E.2d 636, 638 (Ohio 1987). Second, adding responsibilities to nonclients creates the danger of conflicting duties. John H. Bauman, A Sense of Duty: Regulation of Lawyer Responsibility to Third Parties by the Tort System, 37 S Tex L Rev 995,1006 (1996). Third, once the privity rule is relaxed, the number of persons a lawyer might be accountable to could be limitless. Nat’l Savings Bank v. Ward, 100 U.S. 195, 198, 25 L.Ed. 621, 624 (1879). Fourth, a relaxation of the strict privity rule would imperil attorney-client confidentiality. Noble v. Bruce, 349 Md. 730, 709 A.2d 1264, 1278 (Md.Ct.App.1998).

Chem-Age Industries, Inc. v. Glover, 2002 SD 122, ¶ 31, 652 N.W.2d 756, ¶ 31 (S.D.2002).

[¶ 23] Courts that have refrained from adopting a duty to a nonclient are quickly becoming part of a thinning minority and some would say are being overprotective of the legal profession. As one commentator explains:

The modern trend in the United States is to recognize the existence of a duty beyond the confines of those in privity and the attorney/client contract. Whatever the legal theory, however, there must be a duty of care owed by the attorney to the plaintiff ... A duty exists under two principal theories. The first approach is the multi-criteria balancing test, which originated in California. Another approach is the concept of a third-party beneficiary contract.

Mallen, supra, at 693-94.

[¶ 24] In Wyoming, we have not yet been presented with the precise question of whether there are any circumstances in which an attorney owes a duty to a nonclient. We have held that an attorney/client relationship is the essential element for the maintenance of a legal malpractice lawsuit. In Bowen v. Smith, 838 P.2d 186, 198 (Wyo.1992) we held attorneys for a corporation and its majority shareholder who undertook litigation to recover money for the corporation did not represent the minority shareholders, who were separately represented, and owed no duty to them. Also in Brooks v. Zebre, 792 P.2d 196, 201 (Wyo.1990), this Court found no duty existed to a nonclient and distinguished the facts in that case from those in cases which followed the “[California] balancing rule because the facts in those instances assume a third-party beneficiary whom the client clearly intended to favor by employing the services of the attorney.” Id. at 201. The dispute in Brooks centered on the lease of a ranch that included an option to purchase. Id. at 198. This Court held that where the lessor’s interests were adverse to the lessees’, “it is fundamental” that the attorney for the latter could not have assumed a duty to the former. ■ While we recognized that some courts have elected to impose a duty to a nonclient in limited circumstances, we held no cause of action for negligence exists against an attorney for an adversary. Id. Thus, Brooks v. Zebre was not the appropriate circumstance for this Court to adopt a duty to a nonclient.

[¶ 25] Bevan v. Fix, 2002 WY 43, ¶ 47, 42 P.3d 1013, ¶47 (Wyo.2002) is this Court’s most recent iteration of the question of an attorney’s duty. However, the question in Bevan was whether an attorney owed a duty to a former client rather than a nonclient. In Bevan, we said that whether a legal duty exists is a question of law, and absent a duty, there is no liability. Id., ¶ 47.

[¶ 26] While this Court has not been presented with circumstances which warranted finding attorneys owe any duty to third parties, we have recognized other professionals may owe such duties. See Sundown, Inc., v. Pearson Real Estate Co., 8 P.3d 324 (Wyo.2000); Fowler v. Westair Enterprises, Inc., 906 P.2d 1053 (Wyo.1995); Rauh v. Kornkven, 852 P.2d 328 (Wyo.1993) (duty of real estate agents to nonclient buyers); Century Ready-Mix Co. v. Campbell County School District, 816 P.2d 795 (Wyo.1991) (identifying a recognized duty of architects to nonclients). In Erpelding v. Lisek, 2003 WY 80, 71 P.3d 754 (Wyo.2003), this Court utilized the duty analysis from Gates v. Richardson to determine whether a counselor, who was hired by an employer to evaluate an employee, owed a duty to the employee. Erpelding, ¶ 18, (quoting Gates v. Richardson, 719 P.2d 193, 196 (Wyo.1986), quoting Tarasoff v. Regents of University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334, 342, (1976)). While we found the counselor owed no duty to the employee under the facts of that case, we did note that, under some circumstances, such a duty could exist. Erpelding, ¶ 18.

[¶ 27] This case presents the first opportunity we have had to address the question of an attorney’s duty to a third party whom, it is alleged, was intended to benefit from the attorney’s retention. Given the obvious trend around the country and this Court’s willingness to hold other professionals liable to nonclients in appropriate circumstances, we conclude it is time to apply the law equally to attorneys and recognize they can also be found to owe a duty to nonclients in limited circumstances. We see no reason why attorneys deserve absolute immunity when their clients intend their services to directly benefit a nonclient. “The law of professional malpractice should be uniform, unless it can reasonably be shown that one profession is more deserving of protection than another for valid policy or social reasons.” Steven K. Ward, Developments in Legal Malpractice Liability, 31 S. Tex. L.Rev. 121, 142-43 (1990).

[¶ 28] We find the California balancing test adopted in Lucas v. Hamm an appropriate approach to take with regard to this issue. As noted above, that test is similar to the test we adopted in Gates v. Richardson, albeit more narrowly tailored to fit its objective of determining an attorney’s duty to a nonclient. The public policy considerations of the balancing test appropriately require attorneys to exercise their position of trust and superior knowledge responsibly so as not to adversely affect persons whose rights and interests are certain and foreseeable. Heyer v. Flaig, 70 Cal.2d 223 at 228-229, 74 Cal.Rptr. 225, 449 P.2d 161 (1969).

[¶ 29] This Court elects to further tailor the Lucas test by emphasizing the first factor, the extent to which the transaction was intended to directly benefit the plaintiff. Thus, the threshold inquiry must be whether the plaintiff is an intended beneficiary of the transaction; if not, no further inquiry need be made. Strait v. Kennedy, 103 Wash.App. 626, 13 P.3d 671 (2000). We align with the Washington court, which stated:

Put another way, if the plaintiff was not an intended beneficiary of the transaction, the plaintiff lacks standing to sue the attorney for legal malpractice. Leipham v. Adams, 77 Wash.App. 827, 832, 894 P.2d 576 (1995) (citing Trask, 123 Wash.2d at 842-43, 872 P.2d 1080). An “intended beneficiary” of the transaction under Trask means just that — the transaction must have been intended to benefit the plaintiff; it is not enough that the plaintiff may be an incidental beneficiary of the transaction. See Trask, 123 Wash.2d at 845, 872 P.2d 1080.

Id. at 674.

[¶ 30] Whether a limited duty to a nonclient exists must be assessed on a case-by-case basis utilizing the following factors: (1) the extent to which the transaction was intended to directly benefit the plaintiff; (2) the foreseeability of harm; (3) the degree of certainty that the plaintiff suffered injury; (4) the closeness of the connection between the defendant’s conduct and the injury suffered; (5) whether expansion of liability to the nonclient would place an undue burden on the legal profession; and (6) the policy of preventing future harm.

[¶ 31] While the answer to the threshold question of intent does not totally resolve the issue, no further inquiry need be made unless such intent exists. Trask v. Butler, 123 Wash.2d 835, 872 P.2d 1080 (1994). If the intent to benefit a third party is found, the multi-factor balancing test then requires specific public policy considerations before finding a duty to a third party. Id. at 1089 (quoting 1 R. Mallen & J. Smith, Legal Malpractice, § 7.9 (3d ed.1989)). The policy considerations against finding a duty to a nonclient are the strongest where doing so would detract from the attorney’s ethical obligations to the client. Mallen, supra, at 709. This occurs if a duty to a third person creates a material risk of divided loyalties because of a conflicting interest or of a breach of a confidence. The potential for a conflict of interest is encompassed in the fifth policy consideration, whether expansion of liability to the nonclient would place an undue burden on the legal profession. A Massachusetts court stated:

While an attorney may be found to owe a duty to a nonclient whom the attorney knows will rely on the services rendered to his or her client, Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 524, 536 N.E.2d 344, cert. denied, 493 U.S. 894, 110 S.Ct. 242, 107 L.Ed.2d 192 (1989), we “will not impose a duty of reasonable care on an attorney [to a nonelient] if such an independent duty would potentially conflict with the duty the attorney owes to his or her client.” Lamare v. Basbanes, 418 Mass. 274, 276, 636 N.E.2d 218 (1994).

Bratcher v. Moriarty, Donoghue & Leja, P.C., 54 Mass.App.Ct. 111, 763 N.E.2d 556, 560 (2002).

[¶ 32] Like Massachusetts, this Court will not impose a duty on an attorney to a nonclient if such an independent duty would potentially conflict with the duty the attorney owes to his or her client. An attorney owes no actionable duty to an adverse party emanating from the zealous representation of his own client. Brooks, 792 P.2d at 201. Such duty of care to a person whose relationship is adverse to the client is inappropriate. Mallen, supra, at 711.

[1133] We now turn to the facts of this case. The primary question is whether Mr. Drwenski specifically intended to benefit Ms. Connely when he retained Mr. McColloch to obtain his divorce. After a careful review of the record which contains the fruits of a complete discovery process, we can find no evidence that Mr. Drwenski intended to benefit anyone othef than himself when he retained Mr. McColloch to obtain his divorce. Rather, the record only establishes that Mr. Drwenski filed for divorce and wanted his marriage to Mrs. Drwenski dissolved, for whatever reason. We believe it is pivotal that Ms. Connely was not even a beneficiary of the estate at the time Mr. Drwenski initiated the divorce proceedings. We are also persuaded that had he wanted a quick divorce to avoid his wife’s inheritance rights under the statute, thereby leaving more for Ms. Connely, he would not have refused to settle the divorce in September 1999. For a duty to exist, the transaction must have been intended to benefit the plaintiff; it is not enough that the plaintiff may be an “incidental beneficiary” of the transaction. Strait, 13 P.3d at 674.

[¶ 34] While we recognize that a divorce client’s children will be affected by the divorce, that fact alone is not sufficient to support a finding that the attorney hired to obtain the divorce owes a duty to the children of the client. Other jurisdictions that have considered whether an attorney representing one party in a divorce owes any duty to the client’s children have held that the attorney does not owe such a duty. In Strait, the decedent hired an attorney to represent her in her divorce. Id. at 672. However, her divorce was delayed over two years and not finalized before she died unexpectedly in an automobile accident. Since she was still married at the time of her death, her husband was entitled to his intestate share of the decedent’s estate, thereby reducing the daughters’ portions of the estate. The court applied the modified balancing factors test and concluded the daughters were not the intended beneficiaries of the divorce. The Washington court, in reaching its ■ decision, quoted another jurisdiction which considered the same question. The court said:

In Wilsovr-Cunningham, the Kansas Court of Appeals considered a claim very similar to the one at bar. There, attorney Meyer represented Charles Wilson in a dissolution action. A hearing was held and the parties testified that although they had nearly reached a property settlement agreement, they had not yet agreed on the division of certain items. The parties also testified that they thought they could resolve their remaining issues but if they could not they would present the issues to the trial court for resolution. The court granted the dissolution, approved the parties stipulations as to property division, maintenance, child custody and support, and provided that if the parties could not reach agreement as to the remaining issues the court would order a division at a later date. A few weeks later, the parties agreed on the final disposition and both the parties signed the final decree. The decree was ready to be filed on November 23, 1987. At 12:16 a.m. on December 4, 1987, Charles Wilson died intestate. The decree was filed at 9 a.m. on December 4, 1987. The divorce decree was ineffective to terminate the marriage because the decree was filed after Mr. Wilson’s death.
Charles’ children from a former marriage sued Meyer claiming that they received a smaller share of their father’s estate because, due to the untimely filing of the divorce decree, his wife received a spousal share of his estate by intestate succession. The children alleged tort and contract claims against Meyer, claiming that he owed them a duty as intended beneficiaries of the representation and, alternatively, as third-party beneficiaries on the contract between Charles and Meyer.
The Kansas Court of Appeals rejected the argument that the children were intended beneficiaries of the attorney-client relationship. The court applied the multi-factor analysis utilized by the California and Kansas courts (in which the first factor is the extent to which the transaction was intended to affect the plaintiff) and concluded that the purpose of the dissolution “was not to represent whatever future interests the plaintiffs might have had in Charles’ estate.” Rather, the court found that the purpose of a dissolution is to “sever a marital relationship, determine the respective rights to marital property, and provide for spousal maintenance and the support and custody of any minor children of the marriage.” The court found no indication in the record that Charles intended to use his divorce as an estate planning device ... At most, Charles’ children were only incidental beneficiaries of the contract, and “an incidental beneficiary cannot enforce the contract for his or her benefit.”

Id. at 674-675 (citations omitted).

[¶ 35] Likewise, the Washington court in Strait found no indication in the record that the decedent intended her marital dissolution action to serve as an estate-planning device. Ms. Connely contends the Strait case is distinguishable from the present case because Mr. Drwenski intended to benefit Ms. Connely. However, she presented no evidence of that fact. The only evidence Ms. Connely produced regarding Mr. Drwenski’s intent is language from his will that he would leave Mrs. Drwenski “nothing” in the event they were divorced at the time of his death. For two fundamental reasons, that fact fails to prove anything with regal’d to his intent to benefit Ms. Connely when he retained his divorce attorney. First, Ms. Connely was not a beneficiary of his will at the time he retained Mr. McColloch. Second, unmistakably, Mr. Drwenski realized his death was a possibility before the divorce was final. His will specifically addressed that eventuality by leaving Mrs. Drwenski “one-fourth of the property which will be subject to disposition under this will.” That fact does not represent evidence of his intent to benefit Ms. Connely through his divorce. On the contrary, it simply demonstrates he was aware of the ramifications of not obtaining the divorce before his death.

[¶ 36] Ms. Connely claims that Mr. Drwenski’s intent to finalize the divorce quickly, and thereby leave her a larger inheritance, can be inferred from the fact that he was ill when he filed for divorce. And yet, it is undisputed that Mr. Drwenski had the opportunity to settle the divorce and make it final three months before his death, yet he chose not to do so. Under these circumstances, we hold a jury could not reasonably infer Ms. Connely was the intended beneficiary of the divorce. While questions relating to the parties’ intent are usually factual, precluding summary judgment, where the parties’ intent is clear such that reasonable minds could not differ, summary judgment is appropriate. Cordero Mining Co., ¶ 10; see also, Examination Management Services, Inc., ¶ 10; Detroit Institute of Arts Founders Society, 127 F.Supp.2d at 124.

[¶ 37] We separate the formal and pretended from the genuine and substantial so only the latter may be considered in eliminating the burden of a formal trial if only questions of law are left to decide; there must be no issue of material fact to decide. Ahrenholtz v. Laramie Economic Development Corp., 2003 WY 149, ¶ 16, 79 P.3d 511, ¶ 16.

Guesswork cannot be substituted for evidence or inference; and an inference cannot be based upon a mere possibility or probability; it can only be based upon a fact proved, or something known to be true. In more recent times we have had occasion to say no inference can be based on mere surmise, guess, speculation or probability. Tower v. Horn, Wyo., 400 P.2d 146, 147. Also, conjecture, speculation as to happenings, or the suggestion of a possibility cannot be made to take the place of evidence. Edwards v. Harris, Wyo., 397 P.2d 87, 91; Caillier v. City of Newcastle, Wyo., 423 P.2d 653, 656.

O’Brien v. Hunt, 464 P.2d 306 (Wyo.1970).

[¶ 38] Ms. Connely’s position requires the threading together of weak inferences amounting to guesswork. No evidence exists in the record for this Court to alter the district court’s holding that the attorney owed no duty to Ms. Connely under the circumstances of this case. Because the threshold question of our new balancing test is not met, we need not discuss the remaining factors.

[¶ 39] We affirm the district court’s grant of Mr. McColloch’s motion for summary judgment against Ms. Connely, but do so on the merits of our new test. This Court will affirm the district court’s action on appeal if it is sustainable on any legal ground appearing in the record even if the legal ground or theory articulated by the district court is incorrect. Heilig v. Wyoming Game and Fish Commission, 2003 WY 27, ¶ 8, 64 P.3d 734, ¶ 8 (Wyo.2003).

Did the Estate have a Cause of Action Under the Survival Statute?

[¶ 40] The appellant’s second issue is whether Ms. Connely, as personal representative of the estate, could pursue the attorney malpractice case under the Wyoming survival statute on behalf of the estate. The district court held, “The Estate was not damaged. The alleged failure to obtain the divorce did not reduce the estate assets.” We agree with the district court on this issue for two reasons: (1) because no claim could have existed on behalf of the estate while Mr. Drwenski was still alive, and, therefore, none survived, and (2) because the estate suffered no damages.

[¶ 41] Wyoming’s survival statute clearly states:

In addition to the causes of action which survive at common law, causes of action for mesne profits, injuries to the person, an injury to real or personal estate, or any deceit or fraud also survive. An action may be brought notwithstanding the death of the person entitled or liable to the same, but in actions for personal injury damages, if the person entitled thereto dies recovery is limited to damages for wrongful death.

Wyo. Stat. Ann., § 1-4-101 (LexisNexis 2003). The statutory language is clear that a cause of action must arise before death to survive after death. Survive, according to Black’s Dictionary, means “to continue to live or exist beyond the life, or existence of; to live through; to live on after passing through; to remain alive.” Black’s Law Die- tionary, 1297 (5th ed.1979). Thus, the survival statute cannot apply to harm allegedly done to an estate after death. Ms. Connely cites to two cases “approving the concept that an attorney malpractice action arising during the life of the deceased survives in the estate.” See Nevin v. Union Trust Co., 726 A.2d 694 (Maine 1999) and Beastall v. Madson, 235 Ill.App.3d 95, 175 Ill.Dec. 865, 600 N.E.2d 1323 (1992). Those cases, however, are not pertinent here because the alleged malpractice is that Mr. McColloch did not finalize the divorce for Mr. Drwenski before he died. Mr. Drwenski’s death triggered the alleged malpractice. A cause of action, therefore, could not survive Mr. Drwenski’s death because to do so, the cause of action would have had to occur during Mr. Drwen-ski’s life. A survival statute does not create a cause of action, but “merely permits a representative of the decedent to maintain those statutory or common law actions which have already accrued to the decedent before he or she died.” Bryant v. Kroger Co., 212 Ill.App.3d 335, 156 Ill.Dec. 487, 570 N.E.2d 1209, 1210 (1991) (emphasis added).

[¶ 42] The estate’s claim also fails because it suffered no damages. While Ms. Connely relies on Granquist v. Sandberg, 219 Cal.App.3d 181, 268 Cal.Rptr. 109 (1990) to support the estate’s claim of damage, that case is distinguishable from the present facts. In Granquist, the attorney represented the plaintiff in a personal injury case. Since the case was not tried before the client’s death, his estate could not recover damages for his pain, suffering and disfigurement under California law. The attorney’s failure to expedite the case reduced the assets of the estate, giving the estate a cause of action.

[¶ 43] This estate suffered no such loss. Had Mr. Drwenski’s divorce been final at the time of his death, the estate’s assets would have been identical. The estate has no interest in how its assets are distributed; stated another way, the estate has no damages. See Bevan, ¶¶ 62, 63. We affirm the district court’s grant of summary judgment as to claims on behalf of the estate.

      . Mr. McColloch was also hired to represent Mr. Drwenski in four other unrelated lawsuits.

      . See Wyo. Stat. Ann. § 2 — 5—101 (a)(ii) (LexisNex-is 2003).

      . In its entirety, the complaint contained seven allegations: (1) professional negligence regarding representation of deceased during his lifetime; (2) recovery of improper and excess fees; (3) breach of duty or responsibility to Ms. Connely; (4) declaratory judgment in favor of the estate; (5) professional negligence with regard to representation of the estate; (6) billing fraud and conversion; and (7) negligent misrepresentation. Mr. McColloch’s Motion for Summary Judgment addressed counts one, three, and five of Ms. Connely's complaint.

      . The Gates v. Richardson factors are as follows: (1) the foreseeability of harm to the plaintiff, (2) the closeness of the connection between the defendant’s conduct and the injury suffered, (3) the degree of certainty that the plaintiff suffered injury, (4) the moral blame attached to the defendant’s conduct, (5) the policy of preventing future harm, (6) the extent of the burden upon the defendant, (7) the consequences to the community and the court system, and (8) the availability, cost and prevalence of insurance for the risk involved.


source: Caselaw Access Project

author: YOUNG, District Judge.

license: Public Domain

text:
    2003 WY 4
    Sargent K. MAJOR, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-233.
    Supreme Court of Wyoming.
    Jan. 28, 2004.

      Representing Appellant: Diane E. Cour-selle, Director, Wyoming Defender Aid Program; Lindsay Hoyt, Student Director; and K. Adam Christian Jr., Student Intern.
    Representing Appellee: Patrick J. Crank, Wyoming Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Paul S. Rehurek, Deputy Attorney General.
    Before HILL, C.J., and GOLDEN, LEHMAN, and VOIGT, JJ„ and YOUNG, D.J.
   YOUNG, District Judge.

[¶ 1] Sargent Major (Appellant) contends that his plea of nolo contendere to one count of kidnapping should have been rejected by the district court because it was not knowingly and voluntarily given. He also argues that the district court erred in denying his pro se motion to withdraw his plea. We affirm.

ISSUES

[¶ 2] Appellant states the issues on appeal as:

Did the district court err in accepting Mr. Major’s no contest plea to the kidnapping charge when the record did not demonstrate that the plea was knowing and voluntary?
Did the district court abuse its discretion in denying Mr. Major’s presentence motion to withdraw his guilty [sic] plea?

The State’s statement of the issues is substantively identical to Appellant’s.

FACTS

[¶ 3] On December 4, 2000, Appellant and a companion escaped from the Wyoming Honor Conservation Camp in Weston County. Three days later, the escapees entered the garage of an isolated home as the elderly woman who resided there returned. After taking her credit cards and some cash, Appellant and his companion forced her to accompany them in her car on a cross-country trip. The group drove from Wyoming to Lansing, Michigan, where Appellant’s companion went his own way. Thereafter, Appellant and the victim began to head back west. They were stopped in Junction City, Kansas, where Appellant was arrested and the victim, who was not physically harmed during the ordeal, was freed.

[¶ 4] An Information dated December 10, 2000, charged Appellant with one count of escape in violation of Wyo. Stat. Ann. § 6-5-206(a) (LexisNexis 2003). A second Information was filed on January 25, 2001, charging Appellant with five felonies: (1) aggravated burglary in violation of Wyo. Stat. Ann. § 6-3-301(a) and (c)(i) (LexisNexis 2003); (2) larceny in violation of Wyo. Stat. Ann. § 6-3-402(a) and (c)(i) (LexisNexis 2003); (3) aggravated robbery in violation of Wyo. Stat. Ann. § 6 — 2—401 (a)(ii) and (c)(ii) (LexisNexis 2003); (4) kidnapping in violation of Wyo. Stat. Ann. § 6 — 2—201 (a)(ii) or (iii) and (d) (LexisNexis 2003); and (5) kidnapping in violation of Wyo. Stat. Ann. § 6 — 2—201(a)(i), (ii) or (iii) and (d). At arraignment, Appellant pleaded not guilty and not guilty by reason of mental illness or deficiency to all charges.

[¶ 5] At the request of Appellant’s appointed counsel, several psychiatric examinations were performed on Appellant. A forensic psychologist, who was designated by the defense, concluded that Appellant suffered from some “relatively mild neuro-psychological deficits” but “this mental illness did not interfere with his capacity to appreciate the wrongfulness of his conduct at the time of the alleged criminal conduct.” The evaluation concluded that Appellant was competent to stand trial.

[¶ 6] As the proceedings progressed toward trial, Appellant began to express complaints about the performance of his appointed counsel. Appellant directed his complaints to the Wyoming State Bar and the district court. He requested removal of counsel and the appointment of a substitute. On March 18, 2002, the district court held an ex parte hearing with Appellant and his counsel. Appellant had expressed his opposition to a defense based upon a claim of mental illness or deficiency. Defense counsel responded that based upon his contacts with Appellant and the facts of the case, he thought it was the most viable defense. Next, Appellant complained that defense counsel did not communicate with him. At the time, Appellant was in the Wyoming State Penitentiary serving the sentence that was the basis for his presence in the Honor Camp at the time of his escape. Appellant had also spent significant time at the state hospital undergoing a mental health evaluation. Defense counsel cited both of these factors as reasons for limited visitations with Appellant. However, he also noted that he had contacted Appellant by phone and in person, and that Appellant was misrepresenting the frequency of the contacts. During the discussion of this matter, it became apparent that part of the communication problem related to actions taken by personnel at the penitentiary. The court directed the State to intervene and help alleviate some of the conditions about which Appellant was complaining. Appellant then complained that his counsel had a conflict of interest because counsel had a relationship with the victim. Defense counsel explained that he had known the victim’s late husband, who had been a prosecutor in Weston County for many years. Counsel had noted that he met the victim only once at a conference many years ago. He indicated that his passing acquaintance with the victim had worked to the defense’s advantage since the victim consented to an interview.

[¶7] Appellant’s final, and main, complaint was that defense counsel had failed to investigate a potential defense that he wanted to pursue. Specifically, he insisted that the victim was not kidnapped because she had accompanied him voluntarily. Appellant contended that there were various witnesses in Michigan who could confirm that the victim had several opportunities to escape or to inform third parties that she was being held against her will, but she never did either. Counsel countered that to the extent he had been able to locate any of the witnesses, they simply did not support Appellant’s story. Counsel also noted that the victim completely denied Appellant’s allegations and he just did not believe Appellant was advancing a plausible defense. At that point in the hearing, Appellant informed the court that he thought his counsel was a good lawyer,' that he did not want him replaced, and that all he really wanted was for the witnesses he had identified to be contacted. Defense counsel replied that he would attempt to do so, though he was not optimistic about locating them or that they would support Appellant’s position. After hearing all of this, the district court concluded that it would not allow defense counsel to withdraw absent a competent replacement. Appellant concurred in the decision noting that his preference was to retain his current counsel.

[¶ 8] Eleven days later, a change of plea hearing was held. Appellant appeared and entered a plea of guilty to the escape charge. After the district court accepted the plea, Appellant complained about his attorney and requested a new one to handle the remaining charges against him. The crux of Appellant’s complaint was that counsel was not going to call the witnesses from Michigan to testify at trial. Defense counsel explained that he could not locate some of the witnesses and those that he had found either could not’ remember Appellant or their stories did not agree with Appellant’s. The court noted that Appellant had said he wanted to retain defense counsel at the March 18 hearing and that there was no reason to allow a change of counsel at such a late date just, four days before the scheduled trial on April 1. Accordingly, the court denied Appellant’s request for new counsel.

[¶ 9] After a short discussion with Appellant about the consequences of self-representation, the court asked if there was anything else, at which point Appellant replied, “Yeah. How can I get all this mess settled now, right here right now?” The hearing was recessed so that Appellant could consult with counsel. When the hearing resumed, the parties announced that a plea agreement had been reached. In exchange for a no contest plea to a single count of kidnapping, the State agreed to dismiss the other four pending counts against Appellant. After reviewing the proposed plea agreement, the court questioned Appellant on whether he understood the agreement and the attendant consequences. Appellant repeatedly insisted that he understood the plea and that it was what he wanted to do. The district court noted that the plea was being made with a complete understanding by Appellant of the pending charges and the attendant penalties, along with the rights that were being waived by making the plea. The court then accepted the no contest plea.

[¶ 10] Appellant’s sentencing hearing commenced on August 21, 2002. Just prior to the hearing, Appellant presented to the court and counsel a pro se motion to withdraw his no contest plea on the kidnapping-charge. The sole basis of the motion was a contention by Appellant that he had been denied his constitutional right to adequate legal representation. The crux of Appellant’s motion was the allegation that defense counsel had failed to develop a defense based on the existence of exculpatory witnesses identified by Appellant. When the court asked Appellant if he wanted to elaborate on his motion, he declined saying that the motion was self-explanatory. After hearing from the State, the district court concluded that Appellant had received adequate representation, and that there was no fair or just reason to allow withdrawal of the plea. The court proceeded to sentence Appellant, who has now brought this appeal challenging the validity of his no contest plea to kidnapping.

STANDARD OF REVIEW

[¶ 11] For purposes of appellate review, a nolo contendere plea is functionally equivalent to a guilty plea. Becker v. State, 2002 WY 126, ¶ 11, 53 P.3d 94, ¶ 11 (Wyo.2002) (citing Ochoa v. State, 848 P.2d 1359, 1361 (Wyo.1993)). A guilty plea must be made knowingly and voluntarily. Id. (quoting McCarty v. State, 883 P.2d 367, 372 (Wyo.1994) and Parke v. Raley, 506 U.S. 20, 28, 113 S.Ct. 517, 523, 121 L.Ed.2d 391 (1992)). Whether or not a plea was knowing and voluntary is determined by an analysis within the context of W.R.Cr.P. 11:

W.R.Cr.P. 11(d) requires a district court to assure that a plea is voluntary and not the result of force or threats or of promises apart from a plea agreement. The purpose of this rule is to allow the judge to determine whether the defendant entered the plea voluntarily and with an understanding of the consequences of the plea. Smallwood v. State, 748 P.2d 1141, 1143 (Wyo.1988). This court looks to the totality of the circumstances to determine the voluntariness of a plea. Reyna v. State, 2001 WY 105, ¶ 9, 33 P.3d 1129, ¶ 9 (Wyo.2001). The well defined standard for determining whether a plea was knowing and voluntary provides:
“[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their ñatee improper as having no proper relationship to the prosecutor’s business (e.g.bribes).”
Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (quoting Shelton v. United States, 246 F.2d 571, 572 n. 2 (5th Cir.1957), rev’d on other grounds, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958)); see also State v. McDermott, 962 P.2d 136, 139 (Wyo.1998).

Schade v. State, 2002 WY 133, ¶ 9, 53 P.3d 551, ¶ 9 (Wyo.2002).

[¶ 12] Pursuant to W.R.Cr.P. 32(d), if a motion for withdrawal of a guilty plea is made prior to the imposition of sentence, then the court may permit withdrawal upon a showing by the defendant of any fair and just reason. Frame v. State, 2001 WY 72, ¶ 7, 29 P.3d 86, ¶ 7 (Wyo.2001). A defendant does not possess an absolute right to withdraw his plea before sentence is imposed and where the requirements of W.R.Cr.P. 11 have been complied with and the defendant entered into the plea knowingly and voluntarily, the district court’s decision to deny a motion to withdraw is within its discretion. Id. (citing Burdine v. State, 974 P.2d 927, 929-30 (Wyo.1999)).

In deciding whether or not a trial court abused its discretion, this court must “determine whether the trial court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious.” Burton v. State, 2002 WY 71, ¶ 44, 46 P.3d 309, ¶ 44 (Wyo.2002) (citing Cook v. State, 7 P.3d 53, 58-59 (Wyo.2000) and Vaughn v. State, 962 P.2d 149, 152 (Wyo.1998)).

Herrera v. State, 2003 WY 25, ¶ 10, 64 P.3d 724, ¶ 10 (Wyo.2003).

[¶ 13] In Frame, we set forth seven factors that we identified as pertinent to the exercise of a trial court’s discretion in deciding whether to- grant a motion to withdraw a guilty plea: (1) whether the defendant has asserted his innocence; (2) whether the government would suffer prejudice; (3) whether the defendant has delayed in filing his motion; (4) whether withdrawal would substantially inconvenience the court; (5) whether close assistance of counsel was present; (6) whether the original plea was knowing and voluntary; and (7) whether the withdrawal would waste judicial resources. Frame, ¶ 7 (citing United States v. Black, 201 F.3d 1296, 1299-1300 (10th Cir.2000) and 3 Charles Alan Wright, Federal Practice and Procedure: Criminal 2d § 538 (1982 and Supp.2001)); see also Doles v. State, 2002 WY 146, ¶¶ 11-12, 55 P.3d 29, ¶¶ 11-12 (Wyo.2002). The State contends that the factors set out in Frame and Doles are considered only in situations where the defendant is claiming that ineffective ássistance of counsel resulted in a coerced guilty plea. In other situations, such as here, the State suggests that review should be limited to a determination of whether a plausible, just, and fair reason was offered for the plea withdrawal and whether a knowing and voluntary plea was entered in compliance with Rule 11. Appellant counters that nothing in oür decisions in Frame and Doles justifies such a narrow interpretation, and that the factors simply provide guidance for determining whether a fair and just reason to withdraw a plea has been presented.

[¶ 14] Appellant is correct. Our intention in setting out the list of factors in Frame was to provide guidance to the trial courts in making the determination of whether a defendant has presentéd a fair and just reason in support of the motion to withdraw his guilty plea. Frame, ¶ 7 (“Seven factors have been suggested as pertinent to the exercise of the [trial] court’s discretion.”). The factors were also intended to assist us in reviewing the district court’s decision. There is nothing in either Frame or Doles that limits consideration of these factors to a particular factual scenario. The factors may be applied whenever a motion to withdraw a guilty plea prior to sentencing is made. We emphasize, however, that the factors were offered in Frame as a guide to the considerations that may be relevant in determining a motion to withdraw and consideration on the record of each specific factor by the court is not mandatory. No single factor is disposi-tive, and the ultimate determination on the motion is based upon whether the defendant has carried his burden of establishing a fair and just reason for withdrawal. Doles, ¶ 13.

DISCUSSION

[¶ 15] In his first issue, Appellant claims that his plea was neither knowing nor voluntary. Appellant stresses two factors in support of his contention that his plea was infirm: (1) his mental illness and (2) his contentious relationship with defense counsel. With respect to his mental condition, Appellant contends that the district court failed to take into account that it may have affected his ability to understand the proceedings. Specifically, Appellant points to his memory problems, which were noted in the psychological evaluations. He insists that the fact that he was competent to stand trial was not dispositive of whether his plea was voluntary and knowing. Appellant contends that his obvious mental impairments should have put the court on notice that there were questions concerning his ability to plead knowingly and voluntarily. He complains that the trial court made no effort to accommodate or treat with solicitude his mental impairment.

[¶ 16] In making his arguments, Appellant acknowledges that the district court complied with the requirements of Rule 11. However,, Appellant contends that the compliance was strictly technical and the spirit of the rule was not adhered to. At the beginning of the hearing when Appellant offered his no contest plea to kidnapping, Appellant pleaded guilty to the escape charge. Under Rule 11, advisements must be given to the defendant on the rights he possesses including the right to counsel, to persist in a not guilty plea, and to a jury trial, among others. W.R.Cr.P. ll(b)(2)-(5). If the court has already advised the defendant of his rights on the record and in the presence of counsel, then the court does not have to repeat the advisements. W.R.Cr.P. 11(b). Appellant received those advisements during the plea colloquy on the escape charge. He complains that while the court was not technically required to give the advisements again during the plea colloquy on the kidnapping charge, the court should have done so in light of his mental impairment and related memory problems. The failure to do so deprived the no contest plea on the kidnapping charge of voluntariness and left it impossible to say that Appellant had given the plea knowledgeably. In short, Appellant contends that a prior determination that he was competent to plead on the escape charge did not automatically render his plea on the kidnapping charge knowing and voluntary.

[¶ 17] Appellant also cites the contentious nature of his relationship with defense counsel as a basis for concluding that his plea was not voluntary. He claims that he was under coercive pressure to plead out on the kidnapping charge because the lack of communication with his counsel left him in a position where there was no meaningful choice but to accept the plea agreement. Appellant alleges that defense counsel effectively pressured him into pleading because defense counsel: (1) did not adequately investigate the case, especially Appellant’s claims that there were witnesses who would verify his contention that the victim had accompanied and remained with him voluntarily; (2) was not ready for trial; (3) did not communicate with Appellant; (4) expressed a desire not to represent Appellant; and (5) was more concerned with protecting his own professional interests than with protecting Appellant’s right to a fair proceeding. According to Appellant, these problems with defense counsel's representation “snowballed” into an involuntary plea.

[¶ 18] We begin with a review of the plea proceedings. The hearing was originally scheduled for the purpose of Appellant changing his plea on the escape charge to guilty. The district court gave Appellant the extended advisement on his rights and the penalties associated with the escape charge as required by Rule 11. Appellant entered his guilty plea, and a factual basis was supplied for the plea. At that point, the court mentioned that trial was scheduled to commence in four days on the remaining charges. Appellant interjected a request for new counsel for the trial. The basis of Appellant’s request was his frustration with what he perceived as defense counsel’s failure to adequately pursue a defense based upon the theory that the victim had voluntarily accompanied him. Defense counsel responded with a detailed description of his investigation of the witnesses cited by Appellant and explained that those who could be located did not support Appellant’s theory. The district court denied the request for new counsel citing the proximity of trial. A discussion arose about the possibility of self-representation with the district court informing Appellant of his right to do so but also pointing out the drawbacks to that course of action. It is at this point when Appellant inquired into the possibility of pleading out and avoiding trial:

THE COURT: ... Anything else that you would like to address?
THE DEFENDANT: Yeah. How can I get all this mess settled now, right here right now?
THE COURT: Well, there isn’t really a way to get it settled and we need to have a trial. The only way to settle it would be if there’s some offer, if there’s some offer that the State made that you wanted to accept. They’re not trying to force you to accept it. As you will recall, I told you earlier if you want to plead not guilty, that is your right to stick with a not guilty plea.

After a discussion about whether Appellant would be able to return to the penitentiary that day if he pleaded, the court ordered a break to allow Appellant time to consult with his attorney:

THE COURT: Well, let’s take a break right at this moment and you can discuss the issue with your attorney, and then he’ll come and get me and we’ll deal with whatever is left.
THE DEFENDANT: Well, I’m willing to plead to whatever you guys want. Couple lifes, three lifes. Whatever. Don’t matter anymore.
THE COURT: Well, I want you to thoroughly discuss it with your attorney and—
THE DEFENDANT: It’s ridiculous.
THE COURT: We’ll be in recess.

After a twenty-eight minute recess, the parties returned to court:

THE COURT: ... Mr. Major, have you discussed this with your attorney now?
THE DEFENDANT: Yeah.
THE COURT: And what do you want to do?
THE DEFENDANT: Huh?
THE COURT: What do you want to do?
THE DEFENDANT: Just give me the time. Whatever you guys are going to give me. I don’t care.
[DEFENSE COUNSEL]: Your Honor, Mr. Major has..advised me that he would agree to accept the recommendation, the offer of the State which was that in exchange for a — that they would dismiss— he’d plead to the kidnapping charge which alleges that she was returned unharmed prior to trial, which therefore carries a maximum of 20 years, and that they would dismiss the other counts in that Information. And Mr. Majors [sic] has advised me that he would offer a plea of no contest to the kidnapping.
Is that-correct?
THE DEFENDANT: Yeah. Sure. Whatever. Sure. Whatever.
THE COURT: Are we talking amending Count IV then, the' unlawful confinement? Or would it be Count V, the unlawful removal count in—
[PROSECUTOR]: I guess the State’s — it would be Count Y, Judge.
THE COURT: All right.
Mr. Major, the offer then by the State is that they would dismiss Counts I, II, III and IV for your plea to the kidnapping charge in Count V, except that they are amending the charge in Count V to allege that you — or that — yes, that you did release the victim unharmed in a safe place prior to trial. The effect of the change in Count V réduces the maximum penalty from life imprisonment to a maximum of 20 years.
Is that your understanding?
THE DEFENDANT: Yeah. Sure. Whatever.

After explaining the allegations contained within the amended charge and the penalties attached thereto, the court inquired into Appellant’s understanding and intention:

THE COURT: ... Do you feel you understand the charge in Count V as it’s now amended?
THE DEFENDANT: I understand perfectly.
THE COURT: Pardon?
THE DEFENDANT: I understand it all.
THE COURT: Do you feel you understand the possibly [sic] penalties?
THE DEFENDANT: Yep.
THE COURT: Do you have any questions at this time?
THE DEFENDANT: Nope.
THE COURT: All right. Are you ready at this time to enter your plea to the amended charge in Count V?
THE DEFENDANT: Yep.
THE COURT: Would you please stand.
THE DEFENDANT: Stand up? I get f-if I stand up now?
THE COURT: To the charge as amended in Count V that on or about December 4, 2000, you did remove another, [the victim], from her place of residence or from the vicinity where she was at the time of removal, with intent to hold her as a shield or hostage, facilitate the commission of a felony, or terrorize her, and you did release her substantially unharmed in a safe place prior to trial, in violation of Wyoming Statute Section 6-2-201(a)(i), (ii) or (iii) what is your plea?
THE DEFENDANT: What? No contest.
THE COURT: You want to enter a no contest plea?
THE DEFENDANT: I’m not going to tell you I did it.
THE COURT: All right. You may be seated.
Now, I want you to understand that if I accept a no contest plea, as I told you before, it would allow the Court to treat you as if you had pled guilty.
A no contest plea means that you do not contest the charges, but it means that in this case the Court would be able to enter a conviction. The trade off here for you is obviously the dismissal of Counts I through IV and the amendment to Count V.
You understand that this is the trade off?
THE DEFENDANT: Sure.
THE COURT: And is this the reason that you’re entering or wanting to enter the no contest plea?
THE DEFENDANT: What?
THE COURT: Is it the dismissal of the other charges and the amendment to the charge part of the reason that you’re entering a no contest plea?
THE DEFENDANT: No. I’m screwed anyway so it don’t really matter. That’s fine. I entered my plea. Give me my sentence. Let me get on my way already. THE COURT: Well, I would be doing a sentence at a later time so I could have an opportunity to look at your background. Because, as I said, the maximum is 30[sic] years. I’m not necessarily going to give you 30[sic] years unless it were absolutely appropriate.
Chances are—
THE DEFENDANT: How am I going to help myself? Twenty years in jail is life. Get it through your head, man.
THE COURT: Well, Mr. Major, I want to make sure that you understand what would happen if the Court accepts this no contest plea. And I want to make sure that it’s a decision that you want to follow because we’re set ready to go to trial on Monday. And you can have a trial on all these charges.
If you feel that you have a better chance at being found not guilty, then you can go to trial. If you feel that it would be better for you because of dismissal of four counts and an amendment of Count V to have the Court accept the no contest plea, then we’ll go that direction.
In other words, the decision has to be yours. I know you are unhappy at this point because of the charges, and because of maybe the way your confinement has gone but you still need to make an intelligent — or try to make an intelligent decision on what you want to do.
So if I accept the no contest plea, I would enter the conviction of guilty. We would have a sentencing date, and I would dismiss Counts I through TV. And, of course, you’re pleading to an amended charge so that would automatically be considered amended. So it does reduce the maximum possible penalties that I could enter.
And I’m promising you I would give a very careful look at your record and pay attention to your background and decide based upon that what the sentence should be. I’m telling you the maximum is 30[sic] years. I’m not telling you I’m going to give you 30[sic] years.
You said 20, that’s a lifetime. You’re probably right. That is a lifetime. That’s a long period of time. So I’m not necessarily going to give you 20 years either. I don’t know what I’ll give you because I don’t know enough about you.
But it is difficult when, you know, you’re acting just mad at me and at your attorney that I can know what your background is. But I want you to understand that I have to tell you what the maximum is, and I have to tell you that if I accept it, then the trial would be cancelled and we would just go forward with the sentencing where I would hear about your background. I wouldn’t hear anymore really about the alleged crime.
So do you want me to accept the no contest plea or do you want to have this matter go to trial?
THE DEFENDANT: No. It’s the same outcome. Can we just get it .over now?
THE COURT: Well, I don’t know whether it would be the same outcome. But if you feel it would be, then you’re probably best to have the Court accept this no contest plea.
Is that what you would rather me do?
THE DEFENDANT: Yeah.

The State proceeded to give a factual basis for the plea. The following colloquy between the court and Appellant occurred before the acceptance of the plea:

THE COURT: All right. Mr. Major, is there any reason the Court should not accept the no contest plea?
THE DEFENDANT: I have no idea.
THE COURT: Well, do you want me to accept it?
THE DEFENDANT: Sure. If you want, go ahead.
THE COURT: Well, it’s up to you; not up to me. If you say yes, you want me. to accept it, we won’t have a trial. If you say no, we’ll have a trial.
THE DEFENDANT: Sure.
THE COURT: Yes, accept it?
THE DEFENDANT: Sure. Yeah. It doesn’t matter.
THE COURT: It does matter.
All right. I’m going to find that the no contest plea is made freely and voluntarily of the defendant’s own free will and accord and without any coercion of any kind and without any improper inducement.
The plea is made with a complete understanding of the charges pending, of the penalties, of his plea options, and of the rights waived by the plea of guilty plea [sic].
The plea is made after consultation with competent counsel. And I know he’s said on the record his points where he’s not satisfied with his counsel, but the Court finds that he’s been provided with competent counsel.
The defendant is competent to enter the plea, and there’s a factual basis upon which the plea rests.
I’m going to accept the plea agreement.

[¶ 19] To the extent that Appellant is challenging his competence to plead, the record does not support his claim. Contrary to Appellant’s characterization, the majority rule is that the standard for determining competence to stand trial is the same as the standard for determining competence to plead. See Godinez v. Moran, 509 U.S. 389, 395 n. 5, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993) (Stating that all circuits that had considered the issue except the D.C. and Ninth have “determined that the competency standard for pleading guilty is identical to the competency standard for standing trial” and collecting cases); see also State v. Quarrels, 211 Neb. 204, 318 N.W.2d 76 (Neb.1982); State v. Heral, 25 Ill.App.3d 806, 323 N.E.2d 138 (1975); and State v. Byrd, 22 Ariz.App. 375, 527 P.2d 777 (1974). The psychological evaluations of Appellant concluded that he was competent to stand trial, and Appellant does not challenge that determination. Further, Appellant admits that he was competent to plead guilty to the escape charge, which was given at the commencement of the very same hearing where the plea on the kidnapping charge was given.

[¶ 20] This is not to confuse the question of competence with the separate question of whether a plea is knowing and voluntary. A failure to follow the precepts of Rule 11, for example, could render the subsequent plea unknowing and involuntary but that is not related to whether Appellant was competent to plead. The evidence in the record shows conclusively that Appellant was competent to plead on the kidnapping charge. Appellant appears to be arguing that his alleged mental impairments affected his competence to a degree that the district court was required to take extraordinary measures to ensure that his plea was knowing and voluntary. Appellant cites no legal authority for that proposition. In any event, the record does not support his claim of a mental impairment. The psychological evaluations stated that “[t]here is also clear evidence in the testing data to support the conclusion that [Appellant’s] memory for verbal material is more intact than he would like others to believe” and that there were “some indications of malingering in regard to [Appellant’s] memory functioning.” In short, the evidence clearly demonstrates that Appellant was competent to plead, and his claims of a mental impairment affecting his memory were not credible.

[¶21] Appellant contends that his plea was coerced because of the adversarial nature of the relationship that had developed between him and his counsel. The record does not support Appellant’s contentions. The main crux of the dispute between Appellant and his counsel concerned Appellant’s insistence on a defense based upon the theory that the victim had voluntarily accompanied him. Defense counsel acceded to Appellant’s request and investigated the plausibility of the theory by contacting or attempting to contact the various witnesses identified by Appellant. The witnesses that defense counsel was able to locate failed to support Appellant’s story. This was a question of trial strategy and it was incumbent upon defense counsel to offer his opinion to Appellant on the efficacy of any defense. In fact, defense counsel would have been remiss in his duty to represent Appellant if he had failed to do so. Here, defense counsel advised Appellant that he did not believe the proposed defense was viable in light of the facts. Simply because Appellant may have disagreed with that advice does not mean his plea was coerced.

[¶ 22] The record does not support the other allegations raised by Appellant in regard to his counsel’s performance either. Appellant’s allegation that defense counsel was more interested in protecting his own professional interests than ensuring Appellant a fair trial is completely unsupported by any citation to the record. Similarly, Appellant’s claim that counsel was not prepared for trial is not substantiated. Our review of the record shows that defense counsel provided Appellant with effective representation. Initially, counsel pursued a defense centered on a contention that Appellant was not guilty by reason of a mental impairment. Counsel obtained evaluations of Appellant from the state hospital and from a forensic psychiatrist designated by the defense. When communications between defense counsel and Appellant were being hindered by security protocols at the penitentiary, counsel brought this to the attention of the district court, which took action to rectify the situation. Despite his misgivings about Appellant’s proposed defense, counsel undertook an investigation. Ultimately, Appellant pleaded guilty to a single count of kidnapping pursuant to a plea agreement worked out with the State by defense counsel. In exchange for Appellant’s plea, the State dropped four felony counts and the count pleaded to was amended to reduce the potential penalty that Appellant was facing from life to twenty years. The plea agreement appears to be reasonable in light of the State’s very strong case against Appellant. Appellant even acknowledged that he wanted counsel to represent him and believed that he was “a very good attorney.” In sum, the record contradicts Appellant’s claims that his counsel’s representation effectively coerced him into pleading.

[¶ 23] Keeping the above considerations in mind, the question remains whether the plea was knowing and voluntary. We conclude that it was. While Appellant’s attitude, as reflected in his responses to the court, could best be described as hostile at times and abrupt, it is clear that Appellant understood the consequences of making the plea and did so on his own initiative. Before accepting the plea, the district court complied with the requirements of Rule 11. Appellant was advised of the nature of the plea, the penalties, including the potential maximum sentence, associated with the charge he would be pleading to, the rights he would be relinquishing, and the consequences if the court accepted the plea. Appellant repeatedly affirmed that it was his intent to enter the plea and that he understood the proceedings. The record is clear that Appellant entered into the plea agreement on his own volition with full awareness of the consequences. Accordingly, we conclude that the plea was knowing and voluntary.

[¶ 24] In his other issue, Appellant claims that the district court abused its discretion by denying his motion to withdraw the no contest plea. Appellant’s motion was based upon the complaints about his counsel that we have already noted. The motion was presented to the court at the outset of the sentencing hearing. Pursuant to W.R.Cr.P. 32(d), a court may allow a plea withdrawal prior to sentencing upon a showing of a just and fair reason. We review the court’s decision on the motion for an abuse of discretion. Even if a “plausible” or a “just and fair” reason for withdrawal is presented, an abuse of discretion is not demonstrated if the requirements of Rule 11 have been met and the record clearly shows that the defendant intelligently, knowingly, and voluntarily entered the plea. Triplett v. State, 802 P.2d 162, 165 (Wyo.1990).

[¶ 25] In this case, we do not need to do an in-depth review using the factors set out in Frame noted above. Appellant’s motion was based upon his complaints regarding his counsel, and we have already set out why those complaints did not render the plea unknowing or involuntary. To the contrary, we noted that Appellant entered into the plea intelligently, knowingly, and voluntarily. It is evident from the record that Appellant failed to supply the district court with any fair and just reason for withdrawing the plea. Also, the record manifestly demonstrates the district court’s compliance with Rule 11 in accepting the plea. Accordingly, denying the motion was a sound exercise of the trial court’s discretion, and we will not disturb its ruling on appeal.

CONCLUSION

[¶26] Appellant’s nolo contendere plea was knowing and voluntary, and the district court did not abuse its discretion in denying his motion to withdraw the plea. Affirmed.

      . The mental illness/deficiency defense was withdrawn at a pretrial conference.

      . The potential witnesses cited by Appellant included a checkout clerk at a grocery store, an employee at a pizza shop,, and two police officers who apparently contacted the Appellant in his motel room while inquiring.about the occupants of an adjoining room.

      . The kidnapping count subject to the plea was also amended to reflect the fact that the victim had been released "substantially unharmed.” See Wyo. Stat. Ann. § 6-2-201(c) (LexisNexis 2003). This reduced the potential maximum penalty from life to twenty years.

      . When making an argument in favor of a motion to withdraw a plea before the district court, however, it would be to the defendant's advantage to present any arguments relating to these specific factors, or any others that may arise, which favor granting the motion.