author: GREENWOOD, Presiding Judge:

text:
    2000 Utah Ct. App. 244
    SALT LAKE CITY, Plaintiff and Appellee, v. Roger J. ALIRES, Defendant and Appellant.
    No. 990483-CA.
    Court of Appeals of Utah.
    Aug. 10, 2000.

      Kristen R. Angelos, Salt Lake Legal Defender Association, Salt Lake City, for Appellant.
    T. Langdon Fisher, Salt Lake City Prosecutor's Office, Salt Lake City, for Appellee.
    Before GREENWOOD, P.J., and BILLINGS, and ORME, J.J.
   OPINION

GREENWOOD, Presiding Judge:

[ 1 Defendant appeals from a conviction of telephone harassment, a class B misdemean- or in violation of Salt Lake City Code § 11.08.030. Defendant claims that the trial court improperly admitted prior bad act evidence, that admission of hearsay testimony violated both the federal and state Constitutions' Confrontation Clauses, and that the court erred in ruling that statements made during a telephone call were not hearsay. We affirm.

BACKGROUND

12 On July 19, 1998, at approximately 10;40 p.m., Officer Gilbert Salazar arrived at Tiffany Brimhall's Salt Lake City apartment. As Officer Salazar walked around the apartment building, he encountered defendant banging on a window at the back of the building. Defendant told the officer that he lived in the apartment, that his baby and girlfriend were inside, and that he was trying to get into the apartment. Officer Salazar went inside the apartment to determine whether defendant in fact lived there and spoke with Brimhall, who was in the apartment with her infant daughter. Brimhall told the officer that defendant did not live at the apartment and that she wanted him to leave. The officer retrieved some of defendant's belongings from the apartment and told him to leave, but did not arrest defendant.

13 Later that evening, at approximately 11:47 pm., Officer Jill Candland was dispatched to the same apartment in response to a 911 call from Brimhall. Officer Cand-land testified that Brimhall was very upset, nervous, tearful, and shaky when the officer first contacted her. Brimhall told Officer Candland about the earlier incident involving defendant, that defendant had called her on the telephone and threatened to harm her with a knife, and that she didn't understand how he could call her as he'd been taken to jail earlier in the evening. Brimhall also explained to the officer that she and defendant had a romantic relationship in the past and that they had a child together.

14 While Officer Candland was at Brim-hall's apartment, the phone rang. Brimhall answered the phone, and then mouthed the words "That's him" and "It's him" to Officer Candland. Brimhall held the receiver out and moved towards Officer Candland so that both women could hear the phone conversation. The caller asked Brimhall why she had called the police, told her that he wanted to be with her and their daughter, and that if she did not take him back he would kill her. The caller repeated this threat three times and then told Brimhall that she needed to watch the daycare.

5 At this point, Officer Candland took the phone and stated: "Mr. Alires, this is Officer Candland with the Salt Lake City Police Department, you've made a serious mistake making this threat on the phone." The caller yelled a profanity into the phone and hung up. At trial, Officer Candland testified that she had met defendant once previously in 1989 but did not recognize his voice on the phone and that she believed it was defendant's voice based solely on Brimhall's assertion. Police later determined that the call was placed from a pay phone.

T6 Defendant was charged with domestic violence telephone harassment. Brimhall later filed a notarized letter with the court indicating that she did not wish to file charges against defendant and wanted the charges dropped or dismissed. Nonetheless, defendant was tried by jury on February 22, 1998. Brimhall did not appear as a witness at trial. At the conclusion of the trial, the jury found defendant guilty as charged. Defendant now appeals.

ISSUES AND STANDARDS OF REVIEW

T7 Defendant raises three issues on appeal. First, defendant claims that the trial court erred in admitting testimony regarding defendant's earlier appearance and disturbance at Brimball's apartment. We review a trial court's decision to admit evidence of prior crimes or bad acts under Utah Rules of Evidence 408 and 404(b) for an abuse of discretion. See State v. Nelson-Waggoner, 2000 UT 59,¶ 16, 399 Utah Adv. Rep. 22; State v. Decorso, 1999 UT 57,¶ 18, 998 P.2d 837, cert. denied, - U.S. --, 120 S.Ct. 1181, 145 L.Ed.2d 1088 (2000).

18 Second, defendant asserts that the trial court erroneously admitted Brimhall's statements under the excited utterance ex-" ception to the hearsay rule in violation of defendant's right to confront witnesses against him. We review the trial court's legal conclusions for correctness. See State v. Pena, 869 P.2d 932, 986 (Utah 1994).

19 Finally, defendant challenges the trial court's ruling that the caller's statements that Officer Candland heard over the telephone were admissible as non-hearsay. "To the extent that there is no pertinent factual dispute, whether a statement is offered for the truth of the matter asserted is a question of law, to be reviewed under a correction of error standard." State v. Olsen, 860 P.2d 332, 385 (Utah 1993).

ANALYSIS

Prior Bad Act Evidence

T10 Defendant argues that the trial court erred in admitting evidence of his earlier appearance and disturbance at the victim's apartment. Defendant asserts that this evidence was not properly offered for identification purposes because there was no similar pattern or common scheme between this earlier incident and the charged offense, hence, it was offered only as evidence of defendant's bad character. Under Rule 404(b) of the Utah Rules of Evidence,

[elvidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith, It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. In other words, evidence offered under this rule is admissible if it is relevant for a non-character purpose and meets the requirements of Rules 402 and 408.

Utah R. Evid. 404(b); see State v. Decorso, 1999 UT 57,¶ 20, 998 P.2d 887, cert. denied, -- U.S. --, 120 S.Ct. 1181, 145 L.Ed.2d 1088 (2000). As such, the trial court properly admitted evidence of defendant's earlier disturbance if it was offered for identification purposes rather than as character evidence, it was relevant, and it was not unfairly prejudicial.

1 11 The State contends it offered evidence of defendant's prior disturbance to prove the identity of the caller. Identity of the caller was clearly at issue in this case. Defendant denied making the threatening phone call during trial and pleaded not guilty, thus placing his identity in question. See State v. Teuscher, 883 P.2d 922, 927 (Utah Ct.App.1994). However, defendant asserts that the challenged evidence here does not identify him as the threatening caller because there is no common plan or scheme connecting the two incidents. Defendant claims that evidence of the earlier incident would identify him as the caller only if it was shown that he always tried to break into his victims' homes before making threatening phone calls.

[ 12 Evidence of a common plan or scheme is often offered to prove identity under Rule 404(b). See State v. Featherson, 781 P.2d 424, 428-830 (Utah 1989); see also Decorso, 993 P.2d 837, 1999 UT 57 at ¶ 27 (explaining identification evidence from subsequent failed robbery properly admitted for identification purposes due to numerous similarities between charged crime and subsequent crime, including type of store, timing, way perpetrator approached clerks, and implements carried in both incidents); State v. Johnson, 748 P.2d 1069, 1075 (Utah 1987) (holding that other crime evidence was "directly probative on the issue of identity and was indirectly probative on the identity issue because it indicated that a common scheme was employed by the perpetrator of the crimes in using the same name on the forged checks, both of which were cashed the same day").

113 Although defendant correctly asserts that prior cases have determined that evidence of a common plan or scheme is admissible for identification purposes under Rule 404(b), no authority has been brought to our attention holding that a common plan or scheme is always required. In this case, the facts clearly link the two incidents and tend to identify defendant as the caller. Defendant's visit and disturbance at Brimhall's home happened only one hour before she received the threatening phone call overheard by Officer Candland. Police officers told defendant to leave Brimhall's apartment. The threatening phone call included statements regarding Brimhall's involvement of the police. The caller also discussed his relationship with Brimhall and "their daughter," just as defendant had earlier done when speaking with Officer Salazar. Further, both incidents consisted of defendant's angry and aggressive behavior directed at Brimhall. These facts suggest a clear factual link between the two incidents, a course of threatening behavior directed at Brimhall. As such, the trial court did not abuse its discretion in finding that the prior bad act evidence at issue was properly offered for identification purposes rather than to show defendant's bad character.

114 The trial court also correctly determined that this evidence was relevant. Under Rule 402 of the Utah Rules of Evidence all relevant evidence is admissible, but "unless the other crimes evidence tends to prove some fact that is material to the crime charged-other than the defendant's propensity to commit crime-it is irrelevant and should be exeluded by the court pursuant to rule 402." Decorso, 993 P.2d 837, 1999 UT 57 at ¶ 22.

15 In this case, evidence of the earlier incident was admitted by the trial court to identify defendant as the person who made the threatening phone call. The identity of the caller is a material fact and a necessary element in the State's prosecution. Further, as discussed above, the phone call included mention of the earlier police involvement. As such, evidence of defendant's prior distur'bance at the apartment meets relevance requirements as it tends to prove the identity of the caller. j

116 "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Utah R. Evid. 403. Defendant asserts that even if this evidence was properly offered to show identity and meets relevancy requirements it was unfairly prejudicial.

"In deciding whether the danger of unfair prejudice and the like substantially outweighs the incremental probative value, a variety of matters must be considered, including the strength of the evidence as to the commission of the other crime, the similarities between the crimes, the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence probably will rouse the jury to overmastering hostility."

State v. Shickles, 760 P.2d 291, 295-96 (Utah 1988) (quoting E. Cleary, McCormick on Evidence § 190, at 565 (3d ed.1984)).

{17 Consideration of these factors indicates that the prior bad act evidence admitted in this case was not unfairly prejudicial. Defendant's identity as the threatening caller is a necessary element of the charged offense. Because identity was a crucial issue at trial, this evidence was very important to the State's case. The earlier incident happened just one hour before the threatening phone call. Both incidents involved angry behavior directed at the same victim. Further, the earlier incident was not one that would likely cause a jury to become overly hostile to defendant. Though defendant was at the residence and caused a disturbance, he did not attempt to assault Brimhall, and his behavior did not result in arrest. Therefore, we conclude that the trial court did not abuse its discretion in admitting evidence of defendant's earlier disturbance for identification purposes.

Excited Utterances and Confrontation Clause

118 Defendant asserts that the trial court erroneously admitted Brimhall's statements under the excited utterance exception to the hearsay rule through the testimony of Officer Candland because Brimhall did not appear as a witness and was not subject to cross-examination. Defendant challenges the admission of these statements under both federal and state Confrontation Clause provisions.

1 19 Before making the statement at issue, Brimhall told Officer Candland about defendant's earlier disturbance and explained that after leaving he called her on the telephone and threatened her. While the officer was speaking to Brimhall, the phone rang. The statement at issue was made by Brimhall in Officer Candland's presence upon answering the telephone. Brimhall answered the phone, then stated, "That's him, It's him," to Officer Candland. The trial court determined that Brimhall's statement was admissible under the excited utterance exception to the hearsay rule. Defendant does not challenge the trial court's ruling that Brimhall's statement was an excited utterance Instead, defendant argues that admission of Brimhall's statement through Officer Cand-land's testimony violated the federal and state Confrontation Clauses because Brim-hall was not subject to cross-examination and was not an unavailable witness.

120 We conclude that under the federal Constitution White v. Illinois, 502 U.S. 346, 348-49, 112 S.Ct. 736, 789, 116 L.Ed.2d 848 (1992), is controlling. In White, the United States Supreme Court considered whether the Confrontation Clause of the Sixth Amendment requires the State to produce a hearsay declarant at trial or show that the declarant is unavailable before a trial court admits testimony falling under the excited utterance exception. The White Court ultimately held that the unavailability analysis was not a necessary part of a Confrontation Clause inquiry when statements are admitted under this exception. See id. at 854, 112 S.Ct. 7386 at 741. The Court explained that the excited utterance exception was "firmly rooted" and that statements falling under it are "made in contexts that provide substantial guarantees of their trustworthiness." Id. at 355, 112 S.Ct. 736 at 742. In so ruling, the White Court limited the holding of Oko v. Roberts, 448 U.S. 56, 100 S.Ct. 2581, 65 L.Ed.2d 597 (1980), explaining that "Roberts stands for the proposition that unavailability analysis is a necessary part of the Confrontation Clause inquiry only when the challenged out-of-court statements were made in the course of a prior judicial proceeding." White 502 U.S. at 354, 112 S.Ct. 736 at 741.

121 White involves analysis of the same hearsay exception at issue here and clearly states that unavailability is not required. Defendant does not distinguish White. Instead, the basis of defendant's federal Confrontation Clause argument is that Utah courts have implicitly rejected the White analysis and have continued to require unavailability. This argument is problematic, given that under the Supremacy Clause the United States Supreme Court has the final word on the federal Constitution and state supreme courts may not interpret it differently. However, because we do not read the cases cited by defendant as purporting to announce a different rule we need not face that problem. Defendant relies on State v. Carter, 888 P.2d 629 (Utah 1995), cert. denied, 516 U.S. 858, 116 S.Ct. 168, 133 L.Ed.2d 105 (1995), State v. Menzies, 889 P.2d 398 (Utah 1994), cert. denied, 518 U.S. 1115, 115 S.Ct. 910, 180 L.Ed.2d 792 (1995), and State v. Moosman, 794 P.2d 474 (Utah 1990). Review of these decisions indicates that defendant's reliance is misplaced.

122 In Carter, the Utah Supreme Court held that a transcript of witness testimony at a 1985 sentencing hearing was properly admitted during defendant's 1992 sentencing hearing. See 888 P.2d at 647. The Carter court analyzed defendant's Confrontation Clause challenge under previous Utah precedent following the rule enunciated in Roberts, explaining that the transcript was admissible because the witness was unavailable and the testimony was sufficiently reliable. See id. at 646-47. However, the evidence at issue in Carter consisted of "out-of-court statements . made in the course of a prior judicial proceeding," White, 502 U.S. at 854, 112 S.Ct. 736 at 741, precisely the type of statements to which the United Supreme Court limited Roberts' holding in White. As such, this case does not stand for the proposition that Utah courts have rejected the precedent set by White.

123 Similarly, in Menzies, the Utah Supreme Court evaluated whether the admission of preliminary hearing testimony of a witness who refused to testify at trial violated the Confrontation Clause. See 889 P.2d at 402. The court analyzed defendant's claim under the test set forth in Roberts requiring unavailability. See id. However, as in Carter, the evidence at issue consisted of statements made in a prior judicial proceeding, statements which the White Court indicated must satisfy the Roberis test. See White, 502 U.S. at 854, 112 S.Ct. 736 at 741.

$24 In Moosman, the Utah Supreme Court considered whether the defendant's right to confront witnesses against him was violated when the trial court allowed hearsay testimony of the doctor who supervised an autopsy rather than requiring the doctor who performed the autopsy to testify. See 794 P.2d at 479. The Moosman court did not evaluate admission of the hearsay testimony under the Roberts framework, instead fashioning a different analysis. The decision neither discusses nor turns on unavailability. Most importantly, Moosman was decided prior to the White decision, and therefore cannot stand as authority ignoring that decision. Accordingly, we conclude that defendant's federal Confrontation Clause challenge fails.

125 Defendant urges us to interpret the Utah Constitution Confrontation Clause to require unavailability before admitting an excited utterance. Having examined defendant's arguments, we are not persuaded that there should be a different standard under Utah's Confrontation Clause. By their very nature, excited utterances are more likely to be reliable expressions of what occurred at the time they were made than testimony given after reflection. "A statement that has been offered in a moment of excitement-without the opportunity to reflect on the consequences of one's exclamation-may justifiably carry more weight with a trier of fact than a similar statement offered in the relative calm of the courtroom." White, 502 U.S. at 356, 112 S.Ct. 736 at 742-43. Therefore, we conclude that defendant's state Confrontation Clause challenge also fails.

Statements of Caller

126 Defendant claims that the trial court erred in admitting as non-hearsay threatening statements allegedly made by defendant during the telephone call. Defendant specifically objects to statements asserting that if Brimhall did not take him back he would kill her and that she needed to watch the daycare. Defendant asserts that the trial court should have excluded the statements as hearsay and that they were unfairly prejudicial.

127 Rule 801 of the Utah Rules of Evidence defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Hearsay is not admissible unless it falls under a legally recognized exception. 'See Utah R. Evid. 802. "[Ilf an out-of-court statement is 'offered simply to prove that it was made, without regard to whether it is true, such testimony is not proscribed by the hearsay rule.'" State v. Olsen, 860 P.2d 332, 335 (Utah 1993) (citation omitted).

128 In State v. Carlsen, a case involving witness tampering, the Utah Supreme Court determined that a statement threatening the victim that he was dead if he testified the next day was not hearsay. See 638 P.2d 512, 514 (Utah 1981), cert. denied, 455 U.S. 958, 102 S.Ct. 1469, 71 L.Ed.2d 676 (1982). The court reasoned that the statement was not offered to prove that the victim would in fact die if he chose to testify, but rather was offered solely to prove that the defendant had made the statements which were in violation of the statute. See id.; see also State v. Garcia, 663 P.2d 60, 65 (Utah 1983) (holding defendant's threat, "I will kill you," was intended to deter bystander from helping police officer and was not hearsay as it was not offered to prove its truth).

129 In this case, like Carlsen,, the fact that a threatening statement was made served as the basis for the charged offense. Defendant's statement was not offered to show that he actually intended to carry out the threat or that the threat was "true" in any other sense. These statements were not offered to prove that defendant would in fact try to kill Brimhall if she did not take him back, rather they were offered to prove that they were made. Therefore, the trial court correctly determined that the statements made during the telephone call were not hearsay. Finally, the statements were not unfairly prejudicial as they constituted the substance of the charges against defendant. The State would not have had a case without the statements; therefore, their probative value outweighed any prejudice.

CONCLUSION

€ 30 In sum, evidence of defendant's prior disturbance at the victim's residence was properly admitted as evidence of the caller's identity under Rule 404(b) of the Utah Rules of Evidence. Admission of Brimhall's excited utterance identifying the caller as defendant did not violate defendant's right to confront witnesses against him under either the federal or state Confrontation Clause. Finally, the caller's threatening statements were not hearsay as they were not offered for the truth of the matter asserted.

11 31 Accordingly, we affirm.

1 32 WE CONCUR: JUDITH M. BILLINGS, Judge, and GREGORY K. ORME, Judge.

      . The Sixth Amendment to the United States Constitution states that "the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. The Utah Constitution contains a similar provision, stating that "[in criminal prosecutions the accused shall have the right ... to be confronted by the witnesses against him." Utah Const. art. I, § 12.

      . Rule 803(2) of the Utah Rules of Evidence defines an excited utterance as "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." Excited utterances are admitted as an exception to the rule against hearsay under the theory that "'the stress and excitement of the event suppress the declarant's ability to reflect or calculate self interest in a manner that would produce a lie." West Valley City v. Hutto, 2000 UT App 188,¶ 12, 398 Utah Adv. Rep. 3, 5 P.3d 1. In this case, the trial court correctly determined that the excited utterance exception applied as Brimhall made the statement directly after answering the phone while under the stress of receiving the threatening call.

      . The Roberts Court held that in order to admit hearsay statements at trial when the hearsay declarant is not present for cross-examination, the State must show that the declarant is unavailable, and that the statement at issue " 'bears adequate indicia of reliability."" State v. Menzies, 889 P.2d 393, 402 (Utah 1994), cert. denied, 513 U.S. 1115, 115 S.Ct. 910, 130 L.Ed.2d 792 (1995) (quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980)).

      . The Moosman court evaluated the hearsay testimony under a two-part test:
      First, we look at whether the State's presentation of hearsay testimony of extrajudicial statements or occurrences is "crucial" to the State's case or "devastating" to the defendant. Second, we look at the availability of the de-clarant and whether the presence of the de-clarant will add any probative value to the evidence by allowing the trier of fact to observe the demeanor of the witness.
      Id. at 480.


source: Caselaw Access Project

author: ORME, Judge:

license: Public Domain

text:
    2000 Utah Ct. App. 247
    STATE of Utah, Plaintiff and Appellee, v. Jeffery Devon MECHAM, Defendant and Appellant.
    No. 971013-CA.
    Court of Appeals of Utah.
    Aug. 17, 2000.

      Laura K. Thompson, Patterson & Barking, Ogden, for Appellant.
    Jan Graham, Attorney General, and Seott Keith Wilson, Assistant Attorney General, Salt Lake City, for Appellee.
    Before Judges BENCH, DAVIS, and ORME.
   OPINION

ORME, Judge:

{ 1 Defendant Jeffery Devon Mecham was convicted by a jury of aggravated robbery, a first degree felony, in violation of Utah Code Ann. § 76-6-302 (1999), and aggravated kid-naping, a first degree felony, in violation of Utah Code Ann. § 76-5-302 (1999). Mec-ham appeals the convictions, claiming ineffective assistance of counsel, and that the trial court erred in not merging the two convie-tions. We affirm.

BACKGROUND

T 2 On May 29, 1998, the trial court held an evidentiary hearing after this court remanded, pursuant to Rule 28B of the Utah Rules of Appellate Procedure, so the trial court could enter findings of fact regarding Mec-ham's ineffective assistance of counsel claim. We defer to the trial court's findings of fact regarding ineffective assistance of counsel. See State v. Bredehoft, 966 P.2d 285, 289 (Utah Ct.App.1998), cert. denied, 982 P.2d 88 (Utah 1999). We view and recite all other facts regarding the kidnaping and robbery in the light most favorable to the jury verdict. See State v. Loose, 2000 UT 11,¶ 2, 994 P.2d 1237.

1 3 At approximately 1:00 a.m. on June 25, 1995, two men, identified months later as Mecham and Phillip E. Hollen, sought to enrich themselves at the expense of the Cine-mark 10 movie theaters in Layton, Utah. The robbers entered the theater during the "midnight movies," shown in several of the ten theaters, which share a common lobby. Three female concessions employees were closing and cleaning up, one at the front and the other two in the back kitchen area. Two managers were upstairs reconciling the books for the day, and two ushers were walking through the already empty theaters to make sure everyone was gone and to retrieve any items forgotten by the departing patrons. A dark-haired man with a gauze bandage taped to his left cheek entered the back kitchen area brandishing a .22 caliber semi-automatic hand gun, and pointed it at the two workers. They were instructed to look at the floor. The dark-haired robber asked the employees where they kept the money and was told it was upstairs, in the manager's office. When he asked about other employees, he was told about the managers and ushers.

1 4 Just then the third concessions worker walked to the back kitchen area and was forced to join her co-workers. The third concessions worker, upon entering the area, saw the second robber standing silently in the room. The second robber apparently had entered at some point after the dark-haired robber began his dialogue with the employees. The second robber was described as blond and wearing cowboy boots, brandishing a weapon, and sporadically attempting to conceal his face with the collar of his turtleneck.

T5 The three concessions employees, escorted by the dark-haired robber, went upstairs, proceeded down the hall, and knocked on the door to the manager's office, which was locked. One of the managers looked through the peephole, saw the three employees without seeing the robber, and opened the door. The robber quickly escorted the three women inside.

I 6 The dark-haired robber threw a bag to one of the managers and told him to fill it with money. The manager put the money he had, been counting in the bag and then opened the safe and emptied its contents into the bag. The blond robber joined the group, and the two robbers took packing tape and, while telling the employees, "everything's going to be fine, nobody is going to get hurt, just like in the movies," taped up the employees, securing their hands behind their backs. They told the employees not to do anything for ten minutes, and left temporarily.

T7 Meanwhile, one of the two ushers, after clearing the empty theaters and taking a bathroom break, noticed the concessions employees had abandoned their posts without finishing their work. He then heard movement at the top of the stairs. He hollered the name of the other usher to see if it was him. Instead, the blond robber leaned out from the stairway on the second floor and pointed his gun at the usher. The blond robber quickly descended the stairs and forced the usher upstairs, where he joined the other usher who had already been located by the robbers and taken to the top of the stairs. The robbers then forced the two ushers into the manager's office, taped the ushers' hands, and then left for good, leaving all of the theater employees bound. The robbers escaped with over eleven thousand dollars in cash. A few minutes after the robbers left, the employees freed themselves by breaking the tape and promptly called the police.

T8 In the ensuing investigation, two suspects other than Mecham and Hollen were initially considered by the police. One was dark complected and had recently been seen wearing a bandage on his cheek matching the one described by the witnesses. The Layton Police Department assembled a black and white photo lineup that included a picture of this suspect. Two of the seven witnesses picked this individual's photo and identified it as looking like one of the robbers. One witness had a frightened emotional reaction when shown a color photo of the suspect. However, during a physical lineup, while the suspect was identified by one witness as looking and sounding the "most like" the robber with the bandage, there was no positive identification and the suspect was released.

T9 A photo lineup of the second suspect also failed to produce a positive identification, and he, too, was released. The investigation by the Layton Police Department appeared to be at a dead end. No physical evidence had been left at the scene, and there were no other apparent suspects.

10 Four months later the Layton Police Department was contacted by the Salt Lake City Police Department and given the names of Mecham and Hollen as suspects because of similarities between the Cinemark 10 robbery and other robberies in Salt Lake City for which the two defendants had already been arrested. A photo lineup of Hollen and a separate photo lineup of Mecham were prepared and presented to the witnesses. All seven witnesses identified Hollen as the dark-haired robber with the gauze patch. Four of the seven identified Mecham as the blond robber with the cowboy boots; the other three witnesses never saw the blond robber well enough to even attempt to identify him. Mecham and Hollen were subsequently charged.

T11 A public defender was appointed to represent each defendant. The two attorneys worked closely together and discussed in detail both the case law involved and the strategy they intended to employ. Both received copies of all police reports and witness statements.

112 At a preliminary hearing, the attorneys cross-examined the Layton police officer who had conducted the photo lineup. The attorneys were also able to view the actual photo array used to identify their clients. The officer testified that the array was presented to each witness out of the presence of the other witnesses and in no particular order. All the pictures used in the photo lineup were of similar dimensions and the subjects were of the same general appearance. The photos were not suggestive towards Mecham and Hollen, who were bound over for trial at the conclusion of the preliminary hearing. Both defendants later appeared in court for arraignment and entered pleas of not guilty.

113 Sometime before trial, Mecham's attorney received a handwritten letter from Mecham which discussed filing a motion to suppress the identification of him by the witnesses who attended the preliminary hearing and to challenge the reliability of the eyewitness identification of all the witnesses. Mecham sought the exclusion of the eyewitness identifications because of the fundamental unreliability of eyewitness identification as discussed in State v. Ramirez, 817 P.2d 774, 778-81 (Utah 1991), and State v. Lopez, 886 P.2d 1105, 1110-11 (Utah 1994) Mecham's attorney discussed the letter with Hollen's attorney, and both were familiar with the Ramires and Lopes standards. Mecham's attorney discussed Mecham's suggestions with him in person. He explained that some of Mecham's suggestions would not "fly," but that he would look into the others.

[ 14 Mecham's attorney personally inspected the scene of the robbery, where he met with the prosecutor and five of the seven witnesses. He interviewed the witnesses about their observations as well as the circumstances and sequence of those observations. He observed the physical layout and lighting of the crime seene and even used a stop watch to run time ealeulations on various aspects of the robbery. The two defense attorneys again met and discussed all the information gleaned during this visit.

[ 15 Understanding what Ramirez and Lopez required, both attorneys concluded they had little or no chance of success if they tried to suppress the identifications made by the witnesses. Their personal investigations revealed that the Layton Police Department's photo lineup was not unduly suggestive and that the identifications by the witnesses showed a high degree of certainty. They reasoned that filing a motion under such cireumstances would only have the effect of educating the prosecution more about their defense theory and, in the evidentiary hearing likely to follow, give the already strong identification witnesses yet another chance to rehearse their testimony and further solidify their identifications of the two defendants.

16 Thus, as a tactical matter, the attorneys chose not to file a motion to suppress the identifications, despite the earlier mis-identification of an uninvolved suspect by a couple of the witnesses, and intended instead to rely on the Long instruction regarding the general untrustworthiness of eyewitness identification. See State v. Long, 721 P.2d 488, 488-92 (Utah 1986) (concluding that, if requested, trial court must give cautionary eyewitness identification instruction in every case where identification is central because research shows that juries have fundamental misunderstanding of level of reliability of eyewitness identifications and consequently tend to give them undue weight). The Long instruction was indeed requested and given to the jury at trial.

117 Mecham and Hollen were charged with aggravated robbery, aggravated kidnap-ing, and aggravated assault. At trial, defense counsel argued that the three crimes were actually a single instance of robbery, and that the kidnaping and assault merged into the robbery and could not be charged as separate crimes. See Utah Code Ann. § 76-1-402(8) (1999). The prosecutor agreed to drop the aggravated assault charge on this rationale, but argued that the defendants' restraint of the employees went beyond that of a typical robbery. The trial court agreed, stating:

In this matter the [employees] are essentially kidnaped in the lower story of the building. They are taken against their will up to the upper story and held there for a substantial period of time, certainly during the course of that robbery. They ... bound them and left them there ... not knowing when or where they would be ... released. That is not typically the kind of robbery where [robbers] go in and take the property and leave immediately without binding or in anyway detaining them. I think the factual difference is significant.

118 After a jury trial, both Hollen and Mecham were found guilty of aggravated robbery and aggravated kidnaping. Mecham appeals.

ISSUES AND STANDARDS OF REVIEW

T19 Mecham argues that his court-appointed defense attorney rendered ineffective assistance of counsel in not moving to suppress the eyewitness identification testimony as unreliable. "Ineffective assistance of counsel elaims present a mixed question of law and fact." Parsons v. Barnes, 87l P.2d 516, 518 (Utah), cert. denied, 518 U.S. 966, 115 S.Ct. 481, 180 L.Ed.2d 344 (1994). At Mecham's request, this court remanded for a Rule 23B hearing where the trial court made findings of fact with regard to his ineffective assistance claim. "In ruling on an ineffective assistance claim following a Rule 238B hearing, 'we defer to the trial court's findings of fact, but review its legal conclusions for correctness.'" State v. Bredehoft, 966 P.2d 285, 289 (Utah Ct.App.1998) (quoting State v. Classon, 935 P.2d 524, 531 (Utah Ct.App.1997)), cert. denied, 982 P.2d 88 (Utah 1999).

120 Mecham also argues the trial court incorrectly denied his motion to merge the aggravated robbery and aggravated kid-naping charges in light of this court's opinion in State v. Finlayson, 956 P.2d 283 (Utah Ct.App.1998), and the Utah Supreme Court's more recent opinion in State v. Finlayson, 2000 UT 10, 994 P.2d 1243 This is essentially an issue of statutory construction that we review for correctness, according no particular deference to the trial court. See State v. Harmon, 910 P.2d 1196, 1199 (Utah 1995); Zissi v. State Tax Comm'n, 842 P.2d 848, 852 (Utah 1992).

ANALYSIS

A. Ineffective Assistance of Counsel

§21 Mecham argues his trial counsel was ineffective for failing to seek a hearing under Ramirez to test the reliability of the eyewitnesses and, hopefully, to exclude their testimony from trial,. To prevail on a

claim of ineffective assistance of counsel, Mecham must show that (1) trial counsel's performance was objectively deficient and (2) there exists a reasonable probability that absent the deficient conduct, the outcome would likely have been more favorable to Mecham. See Strickland v. Washington, 466 U.S. 668, 687-88, 693, 104 S.Ct. 2052, 2064, 2066-67, 80 L.Ed.2d 674 (1984); State v. Bryant, 965 P.2d 539, 542 (Utah Ct.App.1998). "[Blecause a defendant has the burden of meeting both parts of the Strickland test, it is unnecessary for this court to apply both parts where our inquiry reveals that one of its parts is not satisfied." State v. Marvin, 964 P.2d 313, 315 (Utah 1998).

122 Before we will reverse Mee-ham's conviction based on ineffective assistance of counsel, he must prove there was a "'lack of any conceivable tactical basis' for counsel's actions." State v. Garrett, 849 P.2d 578, 579 (Utah Ct.App.) (quoting State v. Moritzsky, 771 P.2d 688, 692 (Utah Ct.App.1989)), cert. denied, 860 P.2d 943 (Utah 1993). We "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that under the circumstances, the challenged action 'might be considered sound trial strategy."" Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (citation omitted). Accord Bryant, 965 P.2d at 542. A careful review of defense counsel's actions of record appears to supply "a rational basis for counsel's performance," and it would likely be correct to "assume counsel acted competently." State v. Tennyson, 850 P.2d 461, 468 (Utah Ct.App.1993).

123 We have, however, the added benefit in this case of counsel's own detailed explanation of his tactics, provided by him at the Rule 23B hearing, and the trial court's findings made pursuant to that rule. After looking into all the cireumstances surrounding the identification of Hollen and Mecham, viewing the photo array, questioning the officer who prepared and presented the array, interviewing five of the witnesses, and spending time at the scene of the crime, Mecham's counsel concluded, as restated in the trial court's findings, that

a motion to suppress had little chance of success.... [Counsel for both defendants] felt that the filing of such a motion would only have the effect of educating the prosecution more about their theory of defense and give already strong identification witnesses yet another chanee to rehearse their testimony and further solidify their identification of the defendants.... [Instead, counsel believed they could present] the shortcomings of eyewitness identification ... effectively with a cautionary jury instruction on eyewitness identification.

In fact, Mecham's counsel had some success in impeaching and undermining the witnesses' identification at trial. In our view, trial counsel had sound strategic reasons for not doing as Mecham requested.

{24 Mecham's claim presents us with a unique issue, however, because of the letter he sent to his attorney specifically requesting a hearing to suppress the identifications. His counsel chose not to honor his request, but he did discuss his reasoning with Mecham. Under the Rules of Professional Conduct, there are certain decisions that must be made by the client. These include whether to accept a plea arrangement, whether to settle a case, whether to testify at trial, and whether to waive a jury trial. See Utah R. Prof. Conduct 1.2(a). The attorney also is obligated to keep his client informed. See id.; Utah R. Prof. Conduct 1.4. Yet, notwithstanding these professional requirements, an attorney still retains responsibility for tactical decisions regarding a case, including deciding which motions to pursue or not pursue. The official comment to Rule 1.2, on the scope of representation, states, with our emphasis: "[A] lawyer is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so.... In questions of means, the lawyer should assume responsibility for technical and legal tactical issues [.J' Deciding whether to file a motion to suppress eyewitness identifications before trial or to wait and discredit the eyewitnesses' testimony during cross-examination, following up with a Long instruction, is one such tactical matter.

125 If Mecham was so opposed to the tactic formulated by his counsel, he had other avenues of redress. See Utah R. Prof. Conduct 1.16(a)(8) ("A lawyer shall not represent a client ... if;: The lawyer is discharged."); id. at 1.16(b)(8) ("A lawyer may withdraw from representing a client ... if: A client insists upon pursing an objective that the lawyer considers ... imprudent{.]"). Mee-ham could have sought new counsel or continued to press his wish for a Ramirez hearing regarding the eyewitness identifications. While Mecham may have favored seeking pretrial suppression of the testimony, the record shows that Mecham was informed about the tactics his counsel was pursuing throughout, never again requested that counsel follow a different approach, got along rather well with his counsel, and never-until this appeal-fussed about the quality of his counsel's representation.

126 Accordingly, trial counsel's decision not to seek pretrial Ramirez relief was a product of sound tactics rather than of ignorance or ineptitude. Mecham's ineffective assistance claim fails on this basis, and we have no need to consider whether it also fails on the second ground, ie., that he has not shown that prejudice resulted from his counsel's actions. See Marvin, 964 P.2d at 315.

B. Merger

127 Mecham also argues that under the facts of this case, aggravated kidnaping should be merged as a lesser included offense of aggravated robbery and that the trial court erred in holding otherwise. According to Mecham, the detention of the employees during the robbery was part and parcel of the robbery. We agree that some detention is inherent in the "host crime" of aggravated robbery. But this does not automatically merge the two crimes each time they occur as part of the same criminal episode.

128 Utah Code Ann. § 76-1-402 (1999) defines a lesser included offense:

(3) A defendant may be convicted of an offense included in the offense charged but may not be convicted of both the offense charged and the included offense. An offense is so included when:
(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged....

"Included offenses are defined as those '"where the two crimes are 'such that the greater cannot be committed without necessarily having committed the lesser'"'" State v. Finlayson, 956 P.2d 283, 287 (Utah Ct.App.1998) (quoting State v. Shaffer, 725 P.2d 1801, 1813 (Utah 1986)) (other citations omitted). "If the jury is not required to find any additional elements to convict a defendant of the lesser crime once it has found him guilty of the greater, then the lesser crime is mere surplusage." Id.

$29 The Utah Supreme Court has made it abundantly clear, however, that section 76-1-402 never applies to merge crimes that have distinct statutory elements.

[Whether one crime is a lesser included offense of a greater crime under section 76-1-402, turns on the statutorily defined elements of the two crimes. That is, the court looks to the facts to determine what crime, or variation of the crime, was proved, but once this determination is made, the court looks to the statutory elements of the crime to determine whether it is an included offense.

State v. Finlayson, 2000 UT 10,¶ 16, 994 P.2d 1248. Simply put, the focus of section 76-1-402 is on the statutory elements required. See id. The definitions of aggravated kid-naping and aggravated robbery contain different elements. Specifically, there is no detention element stated in the definition of aggravated robbery. See Utah Code Ann. § 76-6-802 (1999). Accordingly, because the two crimes have distinct statutory elements, aggravated kidnaping is not a lesser included offense of aggravated robbery. See Finlayson, 2000 UT 10 at ¶ 16, 994 P.2d 1243. Yet it is a matter of common sense that detention, while not an element, is inherent in most aggravated robberies.

130 Indeed, there is another conceptually distinct basis for finding that "one set of facts may give rise to a merger of two or more separate crimes," despite each crime's unique statutory elements, "so as to preclude multiple convictions for essentially the same conduct." Id. at ¶ 17. In State v. Couch, 635 P.2d 89 (Utah 1981), the Utah Supreme Court recognized that "[a] defendant convict, ed of both kidnaping and what can be termed the 'host erime' would in many cases receive a significantly heavier sentence than if only the host crime had been charged." Id. at 92. Therefore, to convict a robber of aggravated kidnaping as well as aggravated robbery, consistently with Couch, the prosecutor must first show that the detention was beyond "the minimum inherent in [aggravated robbery]." Id. at 98. Moreover, the detention element must be "significantly independent" of the detention inherent in the host crime. Finlayson, 2000 UT 10 at ¶ 23, 994 P.2d 1243.

131 The aggravated robbery in this case, and almost every aggravated robbery as a factual matter, contains the elements needed to prove aggravated kidnaping. But under Couch, the question is whether there exists a sufficiently independent basis for the separate charge of aggravated kidnaping. See 635 P.2d at 92-93.

182 In Finlayson, the Utah Supreme Court recognized the usefulness of a three-part test for determining whether the Couch rule is satisfied-ie., whether a detention or movement of a victim is sufficiently independent to justify a separate conviction for aggravated kidnaping. See 2000 UT 10 at ¶ 23, 994 P.2d 1243. The three-part test states:

"[If a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnaping the resulting movement or confinement:
Ca) Must not be slight, inconsequential and merely incidental to the other crime;
(b) Must not be of the kind inherent in the nature of the other erime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection."

Id. (quoting State v. Buggs, 219 Kan. 203, 547 P.2d 720, 731 (1976)).

133 Applying this three-part test to the facts of this case, the evidence shows that the detention was not slight or inconsequential. All seven employees were bound, and the trial court noted that it was unclear how long they would remain so before they were discovered or able to free themselves. This was not a typical robbery where the victims' detention consists of them simply standing still for a few brief moments, with their hands up. Second, binding victims and confining them to a room is not inherent in an aggravated robbery. It is an additional act, completely independent of the act of taking property by force or threat of force. Lastly, the detention did make the crime substantially easier to commit, and was done expressly for the purpose of avoiding premature detection. Under these facts, we conclude that the trial court was correct in recognizing that herding the victims at gunpoint to the manager's office and binding their hands behind their backs had sufficient independence to support a charge of aggravated kidnaping.

1 34 Based on the law and the facts of this case, we reject Mecham's argument that aggravated kidnaping is a lesser included offense of aggravated robbery under Utah Code Ann. § 76-1-402 (1999), as well as his argument that the two crimes should be viewed as merged under the Couch doctrine.

CONCLUSION

T35 We conclude Mecham was not denied effective assistance of counsel because there were conceivable-indeed, articulated cal bases for counsel's decision not to move to suppress the eyewitness identification of Mecham. We also conclude aggravated kid-naping and aggravated robbery do not merge under the facts of this case. The detention to which the employees of the Cinemark 10 were subjected exceeded the restraint inherent in a typical aggravated robbery and was sufficiently independent to support an aggravated kidnaping conviction.

[36 Affirmed.

T37 WE CONCUR: RUSSELL W. BENCH, Judge, and JAMES Z. DAVIS, Judge. .

      . While never "masters of disguise," Hollen and Mecham became somewhat more adept at concealing their identities as they advanced in their criminal careers. See, eg., State v. Hollen, 1999 UT App 123,¶ 3, 982 P.2d 90.

      . Apparently, various witnesses to the robbery were present at the defendants' preliminary hearing as spectators. The attorneys were not aware of the identity of the witnesses present at the hearing but filed a motion in limine to exclude any identification stemming from the preliminary hearing. That motion was granted.

      . Mecham apparently has no formal legal training, but rather came by his keen legal insights in the course of rather extensive "hands on" experience with the criminal justice system. See, e.g., State v. Hollen, 1999 UT App 123, 982 P.2d 90.

      . The parties' briefs made reference only to the Utah Court of Appeals' Finlayson opinion. The Utah Supreme Court's Finlayson opinion was issued after the parties' briefs were submitted but before oral argument. Both opinions were discussed at argument.

      . As defendant's counsel described it, "for the most part these witnesses, the ones who testified, were 18 and 19 year old girls; had never been in court before. We didn't want them to have any more experience than possible before taking the stand in front of the Jury." At trial, one of the witnesses testified that Mecham's eyes were blue, when his eyes were actually brown. Mecham's counsel described during his 23B testimony how parading Mecham up to this witness for her to identify his actual eye color "worked good."

      . In dispensing with any analysis of the prejudice prong, we do not mean to suggest Mecham's prejudice argument is well-taken. From the facts set out in this opinion, it should be apparent the result would be the same no matter which of the two prongs of the Strickland test we considered.

      . Utah Code Ann. § 76-5-302 (1999) states:
      (1) A person commits aggravated kidnaping if the person intentionally or knowingly, without authority of law and against the will of the victim, by any means and in any manner, seizes, confines, detains, or transports the victim:
      (a) and in committing, aitempting to commit, or in the immediate flight after the attempt or commission of the kidnaping, the actor possesses, uses, or threatens to use a dangerous weapon as defined in Section 76-1-601; or
      (b) with intent:

      (ii) to facilitate the commission, attempted commission, or flight after commission or attempted commission of a felony....

      . Utah Code Ann. § 76-6-301 (1999) states:
      (1) A person commits robbery if:
      (a) the person unlawfully and intentionally takes or attempts to take personal property in the possession of another from his person, or immediate presence, against his will, by means of force or fear; or
      (b) the person intentionally or knowingly uses force or fear of immediate force against another in the course of committing a theft.
      Utah Code Ann. § 76-6-302 (1999) states:
      (1) A person commits aggravated robbery if in the course of committing robbery, he:
      (a) uses or threatens to use a dangerous weapon as defined in Section 76-1-601;
      (b) causes serious bodily injury upon another; or
      (c) takes an operable motor vehicle.

      . An instance of aggravated robbery without some detention would be unusual, but could happen, as in the case of a perpetrator clubbing an unsuspecting victim over the head and snatching her purse just as she fell to the ground.

      . This is in part because there is no "substantial period" requirement in Utah's aggravated kid-naping statute, unlike Utah's simple kidnaping statute. See Utah Code Ann. § 76-5-301(1)(a) (1999).

      . This conclusion has support in the examples given by the Kansas Supreme Court in the case relied on in Finlayson:
      A standstill robbery on the street is not a kidnaping; the forced removal of the victim to a dark alley for robbery is. The removal of a rape victim from room to room within a dwelling solely for the convenience and comfort of the rapist is not a kidnaping; the removal from a public place to a place of seclusion is. The forced direction of a store clerk to cross the store to open a cash register is not a kidnaping locking him in a cooler to facilitate escape is.
      Buggs, 547 P.2d at 731 (emphasis added).


author: GOLDEN, Justice.

text:
    William D. HANSEN, Appellant (Plaintiff), v. LITTLE BEAR INN COMPANY, a Wyoming corporation, and Barbara Boling, in her individual capacity, Appellees (Defendants). Little Bear Inn Company, a Wyoming corporation, and Barbara Boling, in her individual capacity, Appellants (Defendants), v. William D. Hansen, Appellee (Plaintiff).
    Nos. 99-186, 99-187.
    Supreme Court of Wyoming.
    July 18, 2000.

      Representing William D. Hansen: Don W. Riske and James R. Salisbury of Riske & Arnold, P.C., Cheyenne, Wyoming. Argument by Mr. Riske.
    Representing Little Bear Inn Company and Barbara Boling: Terry W. Mackey and David Evans of Hickey, Mackey, Evans & Walker, Cheyenne, Wyoming. Argument by Mr. Evans.
    Before LEHMAN, C.J., THOMAS, MACY, GOLDEN, and HILL, JJ.

       Retired June 2, 2000.

   GOLDEN, Justice.

Appellant William D. Hansen contests the district court's denial of his claim for contract rescission for mutual mistake, finding Appel-lee Richard K. Boling did not breach the parties' contract and an award of costs and attorneys' fees is not warranted. Boling appeals the district court's denial of his counterclaim that Hansen's failure to discharge the mortgage underlying the parties' agreement is actionable.

We affirm.

ISSUES

Hansen presents the following issues for our consideration in Case No. 99-186:

I. Whether the District Court erred in ruling that Appellant failed to carry his burden of proving mutual mistake of the parties as a basis for his claim of rescission of the Stock Agreement.
II,. Whether the District Court erred in denying Appellant's Motion for Summary Judgment on his claim for breach of contract.
III. Whether the District Court erred in holding that there was an implied term in the Stock Agreement, the failure of which effectively excused performance by Appel-lee Boling.
IV. Whether Appellant is entitled to an award of all costs and attorneys' fees incurred as a result of Appellee's default and breach of contract, as provided for in the Stock Agreement and transaction documents. -

On the issue of the counterclaim, Case No. 99-187, Hansen states the issue as:

Whether the proposed tender of payment by Richard Boling warranted release of the mortgage in favor of William Hansen encumbering the real property of Little bear Inn Company.

Appellees Little Bear Inn Company and Richard K. Boling present the following issues in Case No. 186:

I. Did Appellee's inability to be underwritten for life insurance breach the Agreement For Sale of Corporate Stock?
II. Does the Mortgage herein relate to any obligation but the payment of the Promissory Note herein?
III. Was there an assumption by the parties that Appellee would be able to purchase life insurance, and if so, does such an assumption meet the elements of a mutual mistake qualifying the contract for rescission?
IV. Did Appellee's efforts to be underwritten for life insurance breach the implied contractual duty of good faith and fair dealing?
V. Are Appellants entitled to attorney fees and costs?

On the counterclaim, Case No. 99-187, Bol-ing and Little Bear Inn Company ask:

I. Does a proper tender of payment of amounts due under a mortgage meet the requirements of Wyoming Stat. Ann. 84-1-132?

FACTS

. In 1994, William D. Hansen and Richard K. Boling purchased stock of the Little Bear Inn Company (LBI) from the Melntyres. The purchase was secured with a 15-year note, personally guaranteed by Hansen and Boling. The stock was assigned to Hansen and Boling and held as collateral by the bank for the MelIntyres. Hansen became the majority stockholder, owning 62% of the stock.

On February 27, 1998, the parties executed an Agreement for Sale of Corporate Stock, and Boling purchased Hansen's stock interest for $205,000, secured by a promissory note from LBI and Boling in the amount of the purchase price and a mortgage on the property. Paragraph No. 6 of the Agreement states the following:

6. LIFE INSURANCE. The Purchaser shall, within ten (10) days following closing, purchase and shall thereafter for the term of the Promissory Note maintain term life insurance upon his life in an amount of not less than Two Hundred Five Thousand Dollars ($205,000.00). Said insurance shall name Seller as the beneficiary of such policy and coverage amount. A copy of such insurance policy and all renewals thereof shall promptly be delivered to the Seller. Failure to comply with this requirement by Purchaser shall constitute a material breach of this Agreement. Said insurance shall be "declining balance" insurance wherein Seller receives only the amount necessary to pay the principal balance hereunder with the remaining proceeds going to a beneficiary designated by Purchaser. Purchaser is relieved from this obligation if he cannot locate a company willing to underwrite said insurance for less than $150.00 per month for the initial premium. In the event that Purchaser is unable to locate a company which offers such insurance for $150.00 or less per month premium, he shall notify Seller of such fact and the amount of the premium which is required and Seller may elect, in writing, to agree to pay any difference between the required premium and $150.00 per month. Purchaser agrees to secure such insurance and keep it current as long as Seller pays any additional premium.

Two days following the agreement to purchase Hansen's stock, Boling met with an insurance agent, completed an application for a life insurance policy and executed a collateral assignment to Hansen on approval of his application. Based on blood tests indicating high cholesterol and liver enzymes, Boling was informed he was uninsurable. He then sought medical treatment and was prescribed medication and a diet regimen. Subsequent blood tests showed decreased levels, but not enough to secure a policy. A pool of 130 insurance companies declined coverage, as did five substandard brokerage companies. A second insurance agent solicited policies from high-risk brokerage companies without success. Boling informed both agents they should consider polices above the Agreement's $150 monthly premium limit, if need be. Boling pursued the purchase of life insurance for eight months, receiving the last insurance application rejection on November 3, 1998.

On August 18, 1998, Hansen filed a Complaint for Judgment alleging a material breach of the Stock Agreement by Boling. On February 25, 1999, the district court denied Hansen's motion for summary judgment, finding a genuine issue of material fact regarding whether Boling used reasonable efforts to procure a life insurance policy and "what result should obtain if Boling is unin-surable."

On March 5, 1999, Boling notified Hansen he was ready to pay off the entire principal and interest due on the mortgage, evidenced by a letter from a bank indicating funds would be available immediately, provided a release of mortgage was given by Hansen. Hansen refused to release the mortgage.

On March 12, 1999, Hansen filed an Amended Complaint alleging breach of contract, rescission of contract through mutual mistake of fact, breach of implied covenant of good faith and fair dealing, and costs of collection and attorney's fees. Boling counterclaimed, alleging Boling and LBI offered to pay the promissory note in full, based on a commitment from the bank to loan the money upon the release of Hansen's mortgage, and that Hansen refused the offer, in violation of Wyo. Stat. Ann. § 34-1-182.

At trial on March 24, 1999, Boling testified he had secured a written commitment of funds from a bank to buy out Hansen by November 6, 1998, and attempted to have Hansen removed from his personal guarantee with the MeclIntyres, though the Meln-tyres refused. Hansen and Boling both testified that on the date they entered into the agreement for purchase of Hansen's stock, neither had knowledge of any sort that would lead them to believe Boling would not be able to qualify for insurance coverage. When Hansen was asked why he agreed to the provision in Paragraph 6, which states: "Purchaser is relieved from this obligation if he cannot locate a company willing to underwrite said insurance for less than $150.00 per month for the initial premium," Hansen responded he was concerned about the cost to Boling, although he did not think the insurance would be so expensive that Boling could not afford it.

Concluding Boling had used reasonable efforts to secure a life insurance policy, the district court denied Hansen's complaint, finding no breach of contract or implied covenant of good faith and fair dealing. The trial court also found an award of attorney's fees and costs was unwarranted and that Hansen had failed to carry his burden for rescission of the contract based on mutual mistake. In denying Boling's counterclaim, the district court concluded Wyo. Stat. Ann. § 34-1-182 was designed to provide a remedy for mortgagors who have satisfied all conditions of the mortgage, but face a recalcitrant mortgagee. The trial court determined Boling did not render full performance, but only offered to do so, making the statute inapplicable. The district court concluded the parties were left in the same position as before the litigation, with the bargain still in force, except for Boling's obligation to secure life insurance, which had been fulfilled.

DISCUSSION

Standard of Review

At issue is the construction and resulting interpretation of Paragraph No. 6 of the parties' written Agreement for Sale of Corporate Stock, which this Court reviews as a matter of law. Mathis v. Wendling, 962 P.2d 160, 163 (Wyo.1998); Sanchez v. Life Care Centers of America, 855 P.2d 1256, 1257 (Wyo.1993). In so doing, we review, de novo, the district court's conclusions of law. Saulcy Land Co. v. Jones, 988 P.2d 1200, 1208 (Wyo.1999).

As we interpret the Agreement, we are mindful that our primary focus is the intent of the parties. Wolter v. Equitable Resources Emergy Co., 979 P.2d 948, 951 (Wyo.1999) (citing Woods Petroleum Corporation v. Hummel, 784 P.2d 242, 248 (Wyo.1989)). If the document is clear and unambiguous, we review the four corners of the Agreement to determine the parties intent. Sierra Trading Post, Inc. v. Hinson, 996 P.2d 1144, 1148 (Wyo.2000). Ambiguity is found if indefiniteness of expression or double meaning obscure the intent of the parties, though disagreement between the parties as to the Agreement's meaning does not give rise to an ambiguity. Wolter, 979 P.2d at 951 (citing Svalina v. Split Rock Land and Cattle Co., 816 P.2d 878, 881 (Wyo.1991)); Mathis, 962 P.2d at 163-64.

Mutual Mistake

When there is mutual mistake, there is no mutual assent of the parties. Shrum v. Zeltwanger, 559 P.2d 1384, 1387 (Wyo.1977). "A mutual mistake is one which is reciprocal and common to both parties with each party being under the same misconception as to the terms of the written instrument." Patel v. Harless, 926 P.2d 963, 966 (Wyo.1996) (citing Shrum, 559 P.2d at 1386). We have said:

When a mistake in a writing is claimed, the burden rests on the party claiming the mistake to establish by evidence that is clear, satisfactory and convincing that the contract as written does not contain the agreement entered into between the parties; that the mistake was mutual; and that it did not occur by or result from negligence of the party claiming it.

Patel, 926 P.2d at 966 (quoting Schulz: v. Miller, 837 P.2d 71, 76 (Wyo.1992)); Pfister v. Brown, 498 P.2d 1248, 1245 (Wyo.1972).

Upon finding a mutual mistake exists, the Court may reform or cancel the contract. Mathis, 962 P.2d at 164 (citing Patel, 926 P.2d at 966). This Court has determined the elements of a mutual mistake:

The essential elements of mutual mistake in a written instrument for which a court of competent jurisdiction may grant appropriate relief are that there was an antecedent agreement which the written instrument undertakes to evidence; that a mistake occurred in the drafting of the instrument and not in the antecedent agreement which it undertakes to evidence; and that in the absence of fraud or inequitable conduct on the part of one of the parties, the mistake was mutual.

Mathis, 962 P.2d at 164 (citing Schulz, 837 P.2d at 74).

The Restatement (Second) of Contracts § 151 (1981) defines mistake as "[al belief [that] is not in accord with the facts." Comment a to this section makes clear:

The word "mistake" is not used here, as it is sometimes used in common speech, to refer to an improvident act, including the making of a contract, that is the result of such an erroneous belief, This usage is avoided here for the sake of clarity and consistency. Furthermore, the erroneous belief must relate to the facts as they exist at the time of the making of the contract. A party's prediction or judgment as to events to occur in the future, even if erroneous, is not a "mistake" as that word is defined here.

Restatement (Second) of Contracts § 151 emt. a (1981).

Although the parties' Agreement addressed their concern over the eventual cost of an insurance policy for Boling, they failed to consider that Boling would not be able to obtain insurance under any condition at any price. Neither party believed, before entering into the Agreement, Boling would be uninsurable prior to entering into the Agreement, and Hansen did not investigate this possibility before the Agreement was executed. The parties have simply failed in the Agreement to provide for this eventuality. We find, as did the district court, the failure to adequately predict this result is not a mistake of the parties, but merely poor prognostication. Mutual mistake of fact does not exist.

Breach of Contract and Breach of Implied Covenant of Good Faith and Fair Dealing

The district court concluded that the omission of an essential term addressing the uninsurability of Boling rendered the insurance clause of Paragraph No. 6 ambiguous, thus permitting the court to infer a term which is reasonable under the cireumstances. Determining that a reasonable term can be inferred from the implied covenant of good faith and fair dealing, the district court resolved that Boling was under a duty to use reasonable efforts to secure insurance and did so. Thus, no breach of contract or covenant of good faith and fair dealing was found.

When the parties to a bargain sufficient ly defined to be a contract have not agreed with respect to a term which is essential to a determination of their rights and duties, a term which is reasonable in the cireum-stances is supplied by the court.

Restatement (Second) of Contracts § 204 (1981).

"Every contract is deemed to contain an implied term of good faith and fair dealing." Roussalis v. Wyoming Medical Center, No. 96-219, slip op. at 39, 2000 WL 424823 (April 20, 2000); see Wilder v. Cody Country Chamber of Commerce, 868 P.2d 211 (Wyo.1994); McIlravy v. Kerr-McGee, 119 F.3d 876, 882 (10th Cir.1997). We have defined good faith to mean:

[Fjaithfulness to an agreed common purpose and consistency with the justified expectations of the other party; it excludes a variety of types of conduct characterized as involving 'bad faith' because they violate community standards of decency, fairness or reasonableness.

Wilder, 868 P.2d at 220 (citing Restatement (Second) of Contracts $ 205 at 100, emt. a (1981)); McIlravy, 119 F.3d at 882.

Common sense and good faith are leading precepts of contract construction, and we employ these measures in our effort to construe the parties' agreement. Polo Ranch Company v. City of Cheyenne, 969 P.2d 182, 136 (Wyo.1998) (citing Moncrief v. Louisiana Land & Exploration Co., 861 P.2d 516, 524 (Wyo.1998)); Klutznick v. Thulin, 814 P.2d 1267, 1270 (Wyo.1991).

Boling spent eight months in the pursuit of life insurance with two different insurance agents, shopping numerous insurance companies, as well as submitting to life style changes and medication to improve his insurability. Absent a clause in the Agreement to provide for his uninsurablility, we conclude, as did the district court, Boling was required to employ reasonable efforts to procure life insurance. We agree Boling was faithful and reasonable in his efforts, and no breach of the implied covenant of good faith and fair dealing occurred.

Costs and Attorney's Fees

Having determined no mutual mistake exists, or breach of contract or implied covenant of good faith and fair dealing, an award of costs and attorney's fees is unwarranted.

Summary Judgment

We dispose of Hansen's appeal of the denial of his motion for summary judgment by noting such denial is not a final order and, therefore, not appealable. Wolter, 979 P.2d at 958; State Form Mutual Automobile Insurance Company v. Shrader, 882 P.2d 813, 820 (Wyo.1994); Kimbley v. City of Green River, 663 P.2d 871, 888 (Wyo.1983).

Boling's Counterclaim

Boling claims that Hansen's refusal to discharge the mortgage following his presentation of a letter from the bank guaranteeing payment on the note is, by statute, actionable. Wyo. Stat. Ann. § 34-1-182(a) (Lexis 1999) states the following:

(a) A mortgagee shall, within thirty (80) days after having received by certified or registered mail a request in writing for the discharge or release of a mortgage, execute and acknowledge a certificate or deed of discharge or release of the mortgage if there has been full performance of the condition of the mortgage and if there is no other written agreement between the mortgagee and mortgagor encumbering the property subject to the mortgage.

(emphasis added). Clearly, this provision requires the note to be paid in full before a mortgagee must release the mortgage.

On March 5, 1999, in a letter to Hansen, Boling stated he and LBI "stand ready to pay off the entire principal and interest due" on the mortgage. Attached to the letter is a letter from the bank to Boling, stating the bank "can close the loan to Little Bear Inn Inc. and the funds would be available immediately, as long as there is a release of mortgage from William D. Hansen." We find, as did the district court, these letters provided by Boling evidence merely an offer to render full performance. Boling has not satisfied the note and therefore cannot claim that Hansen's failure to discharge the mortgage in this cireumstance is actionable under Wyo. Stat. Ann. § 34-1-182.

CONCLUSION

We affirm the district court's finding that no mutual mistake of fact exists. We hold that Boling did not default on the contract, nor did he breach the implied covenant of good faith and fair dealing, and, therefore, the claim for costs and attorney's fees are not warranted. Denial of Hansen's motion for summary judgment is not appealable. Hansen's failure to discharge the note is not actionable under Wyo. Stat. Ann. § 84-1-182 as Boling has not rendered full performance on the note; he only offered to. The parties are returned to their pre-litigation positions, and the Agreement continues to be in full force and effect.

      . Richard K. Boling died on April 6, 2000. On June 27, 2000, this Court entered an Order Allowing Substitution of Party naming Barbara Boling, personal representative of the estate of Richard K. Boling, as Appellee. However, for purposes of this opinion, we will continue to refer to Richard K. Boling as Appellee.


author: THOMAS, Justice.

text:
    Dianna M. ERRINGTON and Charles E. Errington, Appellants (Plaintiffs), v. Leonel ZOLESSI, M.D., Appellee (Defendant).
    No. 99-67.
    Supreme Court of Wyoming.
    July 25, 2000.

      Representing Appellants: Walter Urbigkit of Frontier Law Center, Cheyenne, Wyoming.
    Representing Appellee: Jeffrey C. Brink-erhoff and Hampton K. O'Neill of Brown, Drew & Massey, Casper, Wyoming.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

       Retired June 2, 2000.

   THOMAS, Justice.

Dianna and Charles Errington (the Er-ringtons) appeal to this Court, seeking the reversal of a partial summary judgment, on the issue of punitive damages, entered in favor of Dr. Leonel Zolessi (ZolessiN. The Erringtons seek to recover damages, including punitive damages, for medical malpractice. The district court granted Zolessi a partial summary judgment, ruling that punitive damages were not available. We hold that our rules of civil procedure do not authorize partial summary judgment on an issue, and the district court was without authority to enter a final and appealable judgment. We consider the merits of the case, however, by treating the Erringtons' appeal as a petition for a writ of review. We conclude that genuine issues of material fact are present, and we reverse and remand this case for determination of those issues by the district court.

This statement of the issues is contained in the Erringtons' Brief of Appellants:

1. Whether Trial Court summary judgment denial of jury issue for claim of punitive damages was in error as involving action of the surgeon who deliberately misinformed his patient, Dianna Errington, Appellants as well as her family, after the surgery about a surgery created serious bladder vaginal injury complication and also misinformed a home health care service about the condition of the patient's actual health, which agency was employed to medically assist the post-surgery seriously ill Mrs. Errington.
2. Whether expert witness testimony is required or appropriate to express an opinion that conduct of a physician in lying to a patient does or does not meet the legal criteria for the assessment of punitive damages where the issue of medical negligence is not at issue or involved in the opinion requested.
3. Whether the Trial Court erred in striking the witness affidavit as filed to oppose summary judgment even though the affidavit was entirely consistent with the deposition testimony except contend-ably as to a requested opinion on a principle of law or providing a state of mind hypotheses.

The Appellee's Brief, filed on behalf of Zoles-si, sets forth the issues in this way:

1. Whether the trial court properly granted defendant's motion for partial summary judgment on plaintiffs' punitive damages claim, because plaintiffs failed to present admissible evidence of willful and wanton misconduct?
2. Whether, under these particular facts, expert medical testimony was required to prove willful and wanton misconduct, including the required causal link between the alleged misconduct and damages?
3. Whether the trial court properly excluded the affidavit of plaintiffs' expert, Dr. Oliphant, as a sham affidavit because it contradicted his earlier deposition testimony?

On October 20, 1992, Zolessi performed a laparoscopically assisted vaginal hysterectomy on Dianna Errington. The operation required the surgical separation of the cervix from the bladder. During this phase of the procedure, Zolessi caused a small tear or nick in Dianna Errington's bladder, which he repaired with sutures. He then installed a catheter in her bladder, and left it in place to drain the bladder while the tear healed. Upon her recovery from the anesthesia, Zo-lessi informed Dianna Errington of the tear and repair.

The tear, however, did not heal fully, and a fistula developed that allowed urine to seep out. On October 30, 1992, Zolessi ordered a cystogram, or X-ray, of the bladder, which revealed the possibility of a fistula. After seeing the results of the cystogram, Zolessi informed Dianna Errington that she was healing slowly, but normally. Because she was in severe pain, a second cystogram was conducted on November 4, 1992, which confirmed the possibility of a fistula Zolessi advised Dianna Errington again that she was healing normally, but might need to consult a specialist if the tear did not fully heal. A urologist examined Dianna Errington on November 8, 1992, and a third test confirmed the presence of a fistula along with a second rupture of the bladder. At the urologist's recommendation, Dianna Errington underwent corrective surgery on November 20, 1992. That surgery corrected the fistula and the other rupture, but the Erringtons contend that Dianna Errington's health has never fully recovered.

The Erringtons filed suit against Zolessi on August 1, 1994. Their complaint sounded in negligence and medical malpractice, and the Erringtons sought to recover both compensatory and punitive damages. After extensive discovery, Zolessi filed a Motion for Partial Summary Judgment on the Issue of Punitive Damages on October 27, 1998. In a flurry of motion practice following the filing of that motion, each side sought to strike evidence relied on by the other. The district court held a motion hearing on January 15, 1999. An Order Granting Partial Summary Judgment Concerning Punitive Damages and Order Granting and Denying Motions to Strike and Motions in Limine was entered by the district court on February 16, 1999, in which the district court ruled:

1. Defendant Zolessi's Motion for Partial Summary Judgment on the Issue of Punitive Damages is GRANTED;
2. Defendant Zolessi's Motion to Strike (affidavit of Dr. Oliphant as a sham affidavit) is GRANTED;
11. Upon verbal motion of plaintiffs made during the hearing and pursuant to Rule 54(b) W.R.C.P. the Court FINDS that NO JUST REASON FOR DELAY EXISTS and hereby DIRECTS ENTRY OF FINAL JUDGMENT ON THE ISSUE OF PUNITIVE DAMAGES in favor of Defendant Zolessi and against plaintiffs and the Court hereby DISMISSES WITH PREJUDICE PLAINTIFFS' CLAIMS FOR PUNITIVE DAMAGES.

The district court, however, denied the Er-ringtons' motion to strike the deposition testimony of the same witness whose affidavit was stricken. The Erringtons timely filed this appeal.

The major issue in this case calls for review of not only the particular grant of a partial summary judgment on the issue of punitive damages, but also the nature and extent of any authority on the part of a district court to grant partial summary judgment on less than an entire claim. Fundamental to our decision is the proposition that a claim for punitive damages is a particular element of a cause of action, and it does not constitute a separate claim or cause of action. Uema v. Nippon Exp. Hawaii, Inc., 26 F.Supp.2d 1241, 1250 (D.Hawaiil 1998) ('[wlell settled is the notion that punitive damages does not, in and of itself, state a separate cause of action in tort, but is incidental to a separate cause of action."). See 22 AmJur2d Damages § 741 at 794-95 (1988) and cases cited therein (the rule is summarized, "[a] claim for punitive damages cannot stand as a separate cause of action, since it merely constitutes an element of recovery on the underlying cause of action."). This Court historically has treated the term "claim" as interchangeable with "cause of action." See, eg., Kirby v. NMC/Continue Care, 993 P.2d 951, 954 (Wyo.1999) (used both "claim" and "cause of action" in connection with the elements of a negligence cause of action); Anderson v. Foothill Industrial Bank, 674 P.2d 232, 238 (Wyo.1984) (elements of a cause of action for fraud); Caterpillar Tractor Co. v. Donahue, 674 P.2d 1276, 1280 (Wyo.1983) (elements of a claim for negligence); Moxley v. Laramie Builders, Inc., 600 P.2d 788, 735 (Wyo.1979) (elements of a cause of action for contract); Reynolds v. Tice, 595 P.2d 1818, 1823 (Wyo.1979) (elements of a contract claim and elements of a fraud claim); and Duke v. Housen, 589 P.2d 334, 341 (Wyo.), cert. denied, 444 U.S. 863, 100 S.Ct. 182, 62 L.Ed.2d 86 (1979) (elements of a cause of action for negligence). Many years ago, we said:

Inasmuch as the plaintiffs are not entitled to any actual damages, they are not, according to the general rule, entitled to any punitive damages. Sutherland on Damages (4th Ed.) § 406; Sedgwick on Damages (Oth Ed.) § 861; 17 C.J. 974.

Martel v. Hall Oil Co., 36 Wyo. 166, 186, 253 P. 862, 867 (1927). The obvious inference is that in Wyoming, punitive damages are an element of a claim or cause of action and are not a separate claim.

Summary judgment in Wyoming is authorized and governed by W.R.C.P. 56. The portions of that rule relevant to this discussion are:

(a) For claimant. -A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof.
(b) For defending party. - A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for summary judgment in the party's favor as to all or any part thereof.
(c) Motion and proceedings thereon.- * * * A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.
(d) Cause not fully adjudicated on motion. - If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. If shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.

(Emphasis added.) Also important to this discussion is W.R.C.P. 54(b):

(b) Judgment upon multiple claims or involving multiple parties. - When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

(Emphasis added.)

The question here suggests a tension between paragraphs (a) and (b) of W.R.C.P. 56 on the one hand and paragraph (d) on the other. Paragraphs (a) and (b) purport to allow parties to move for summary judgment on "all or any part" of a "claim." Paragraph (d) directs that when "judgment is not rendered on the whole case or for all the relief asked" (Le., when summary judgment is denied in whole or in part), the district court may "make an order" specifying the facts not in controversy. Paragraph (d) appears to prescribe a very different outcome than paragraphs (a) and (b) appear to permit the parties to seek. W.R.C.P. 56(c), however, demonstrates that a partial summary judgment on less than the entire claim must be specifically authorized. In its last sentence, this paragraph permits an interlocutory summary judgment on liability, leaving the determination of damages to the finder of fact. W.R.C.P. 54(b) speaks to the entry of judgment on entire individual claims. To dissipate any uncertainty, we hold that the district court may not grant a final, appealable summary judgment on part of a claim, other than a determination of liability.

This Court has never squarely addressed the question of a partial summary judgment on an element of a claim or cause of action, but we may have created an assumption that such a judgment could be entered. Verschoor v. Mountain West Farm Bureau Mut. Ins. Co., 907 P.2d 1293, 1301-02 (Wyo.1995). In Verschoor, the district court granted summary judgment to the defendant on four theories of recovery, including punitive damages. In that case, however, the language suggests that actually the court was addressing a claim for willful and wanton misrepresentation, which could have included an element of punitive damages. Id. at 1801. Similarly, in Petty-Ray Geophysical, Div. of Geosource, Inc. v. Ludvik, 718 P.2d 9, 11-12 (Wyo.1986), this Court displayed no aversion to a grant of partial summary judgment for a defendant on the question of punitive damages. That decision is not inconsistent with the reconciliation of the paragraphs of W.R.C.P. 56 that we reach here.

W.R.C.P. 56 mirrors the federal rule on summary judgment, F.R.C.P. 56. Federal decisions interpreting F.R.C.P. 56, therefore, are highly persuasive. Kimbley v. City of Green River, 642 P.2d 448, 445 (Wyo.1982). Federal authority on partial summary judgment is concentrated at the district court level, and is mixed. In the federal context also, the diversity of opinion arises from a perceived tension between paragraphs (a) and (b), which authorize summary judgment on "all or any part" of a claim, and paragraph (d), which directs the district court to merely "make an order" when a motion for summary judgment is denied in whole or in part.

Some federal courts, relying on the "all or any part" language, have ruled that partial summary judgment is available on any portion of a claim. In France Stone Co., Inc. v. Charter Tp. Of Monroe, 790 F.Supp. 707, 708-09 (E.D.Mich.1992), the plaintiff sued for a variance from a zoning ordinance forbidding mining. To obtain the variance, the plaintiff had to show that (1) valuable natural resources were present; and (2) no serious consequences would result from the mining. The plaintiff requested a partial summary judgment declaring that a large deposit of dolomite was a valuable natural resource. The court granted the partial summary judgment over the defendant's protest, stating F.R.C.P. 56(a) "clearly states that a motion for summary judgment may be brought on a claim 'or any part thereof!" France Stone Co., Inc., 790 F.Supp. at 710. Another federal opinion strongly in support of allowing partial summary judgment on portions of claims is Blackford v. Action Products Co., Inc., 92 FRD. 79 (W.D.Mo.1981). An extended quotation from Blackford is warranted here:

The award of summary judgment on a portion of a claim is clearly covered by the words of Rule 56(a). It is a not uncommon occurrence, and has been the practice since early decisions applying the Federal Rules of Civil Procedure. * * * The cases concluding that Rule 56(a) does not allow summary judgment on a portion of a claim have relied on the following excerpt from Rule 56(d):
"If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court ... shall, if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy...."
The duty to sift the issues under Rule 56(d) is in no way inconsistent with the duty to award judgment on "all or part" of a claim under Rule 56(a). A Rule 56(d) order may be issued as part of a summary judgment determination under Rule 56(a), or in cases in which no judgment is warranted, but certain material issues have been decided.

Blackford, 92 F.R.D. at 79-80.

Other federal courts have expressed the view that judgment cannot be entered on less than an entire count or-claim. See In re Randy, 189 B.R. 425, 436 (Bankr.N.D.Il.1995). One court has even held that courts cannot use Rule 56(d) to narrow the issues for trial by issuing orders that certain damage elements cannot be asserted or have not been proven. Oberweis Dairy, Inc. v. Associated Milk Producers, Inc., 553 F.Supp. 962, 970-71 (N.D.Ill.1982). Those cases do not resolve the tension with the W.R.C.P. 56(a) and (b) "all or any part" language. However, the definition of "judgment" in W.R.C.P. 54(a) suggests that a motion under W.R.C.P. 56(a) or (b) for a summary judgment on any part of a claim is not a demand for "judgment" at all, and is correctly identified as a submission seeking the relief provided in W.R.C.P. 56(d).

That view is reflected in In re Grabill Corp., 185 B.R. 101, 106 (Bankr.N.D.Ill.1991) (Rule 56(d) provides a method by which a court can narrow issues and facts for trial after denying in whole or in part a motion properly brought under Rule 56). A federal district court in Pennsylvania said: "The Federal Rules of Civil Procedure do not authorize partial summary judgment for a portion of a single claim. * * * However, Rule 56(d) empowers a district court to withdraw issues from a case where a genuine issue of fact is absent." Testa v. Janssen, 492 F.Supp. 198, 204 (W.D.Pa.1980). Another court held that when a defendant admitted liability on part of a debt, a Rule 56(a) judgment was not appropriate, but a Rule 56(d) order was. Bonda's Veevoederfabrieck Provimi, B.V. v. Provimi, Inc., 425 F.Supp. 1084, 1086 (E.D.Wis.1976).

We also look for guidance in the decisions of Oregon, a state with the same language in its summary judgment rule. Oregon's courts have reversed entries of summary judgments on individual categories of damages. The rationale adopted is that the partial summary judgment rule does not allow "judgment" at all. Rather, it allows only interlocutory orders that become law in the case, but are not ripe for entry of judgment or appeal until the entire case has been adjudicated. The Oregon courts, asserting a lack of jurisdiction, have refused to hear appeals of partial summary judgments. Instead, they have vacated those judgments and remanded. McKechnie v. Stanke, 124 Or.App. 405, 862 P.2d 507, 508 (1993); Chelson v. Oregonian Pub. Co., 71 Or.App. 645, 694 P.2d 981, 982 (1985), modified, 85 Or.App. 84, 785 P.2d 659 (1987). The Oregon approach allows district courts to avoid litigation on baseless claims, and saves the appellate courts from piecemeal appeals.

We perceive that the correct reading is found in those opinions holding that when summary judgment cannot be granted as to an entire claim, the district court may only issue a W.R.C.P. 56(d) order specifying the facts that are not reasonably in dispute. That order then becomes the law of the case and is changeable, but not appealable, until it is incorporated into a final judgment on the entire case. See In re General Adjudication of All Rights to Use Water in Big Horn River System, 803 P.2d 61, 69 (Wyo.1990). That interpretation is true to W.R.C.P. 54(b), which allows entry of final judgment on claims, and to W.R.C.P. 56(d), which pre-seribes orders rather than judgments when the entire claim is not resolved.

Although we hold the district court was without authority to issue a final, appeal-able summary judgment on the question of punitive damages, we proceed to review the case on its merits. We will treat the case as one in which a petition for a writ of review had been properly sought. Our usual standard of review for summary judgments is applicable. That standard is found in W.R.CGCP. 56. Cities Service Oil and Gas Corp. v. State, 888 P.2d 146, 150 (Wyo.1992). In accordance with the cited rule, we will affirm a summary judgment if "there is no genuine issue as to any material fact and * * * the moving party is entitled to judgment as a matter of law." W.R.C.P. 56(c). We examine the record from the point of view most favorable to the party opposing the summary judgment, and give that party the benefit of all favorable inferences that we may fairly draw from the record. Davis v. Wyoming Medical Center, Inc., 984 P.2d 1246, 1250 (Wyo.1997).

The first issue we address is the district court's decision to strike the affidavit of the Erringtons' expert witness. Zolessi moved to strike the affidavit on the ground that it contradicted the expert's previous deposition testimony. Specifically, Zolessi claimed the expert testified that Zolessi's failure to fully inform the Erringtons after the operation did not amount to a breach of the standard of care; that he had no evidence that Zolessi intended to harm Dianna Errington; and that he had no evidence that Zolessi acted so recklessly and with such wanton and willful misconduct as to approach intent to harm. Zolessi argues the expert changed this opinion in his affidavit in which he said Zolessi's conduct was intentional, willful, and wanton. The district court struck the affidavit as a sham, without explaining its rationale.

The Erringtons argue on appeal that the expert's affidavit was consistent with his deposition, although it used some different terminology. An opinion letter by the expert and a pleading filed by the Eirringtons prior to the expert's deposition both said he would testify that Zolessi's treatment of Dianna Errington fell below the standard of care. Several times during his deposition, the expert testified to that same point. The expert never retracted his written opinions. During the deposition, defense counsel read to the expert extensive definitions of "willful and wanton" and "gross negligence" and asked the expert whether Zolessi's conduct met those definitions. The expert said that he was not familiar with those definitions and was not prepared to answer. The question was not raised again.

The only real disparity between the expert's deposition testimony and his affidavit is the repeated use of the words "willfully," "wrongfully," and "falsely." Because the expert had not indicated that he would testify as to those terms and was not an experienced witness, it was reasonable for him to be unfamiliar with them and reluctant to use them. Further, it may fairly be inferred that because he was unable to answer the question in his deposition, the expert became familiar with the legal terminology in order to address the definitional language in his affidavit. His affidavit is consistent with his opinion letter and his deposition testimony in all material aspects, and we hold the district court erred in striking it.

This Court has repeatedly treated the question of whether conduct was willful and wanton as a question of fact. State Farm Mut. Auto. Ins. Co. v. Shrader, 882 P.2d 813, 837 (Wyo.1994); Thunder Hawk By and Through Jensen v. Union Pacific R. Co., 844 P.2d 1045, 1051 (Wyo.1992). Onee the affidavit of the Erringtons' expert witness is in the record, it is apparent that a material issue of fact exists as to whether Zolessi's conduct was so willful and wanton as to support an award of punitive damages. That being the case, a summary judgment, or even an order under W.R.C.P. 56(d), was not appropriate.

The district court's partial summary judgment is vacated; its order striking the affidavit of the Erringtons' expert witness is reversed; and the case is remanded for further proceedings in accordance with this opinion.

      . A fistula is "an abnormal passage leading from an abscess or hollow organ to the body surface or from one hollow organ to another and permitting the passage of fluids or secretions." Merriam-Webster's Ninth New Collegiate Dictionary 467 (1986).

      . W.RC.P. 54(a) reads, in relevant part "(al judgment is the final determination of the rights of the parties in action."