author: KITE, Justice.

text:
    2003 WY 100
    ROCK SPRINGS LAND AND TIMBER, INC., Appellant (Intervenor), v. Brendan LORE, as Successor Trustee of the Colista Combs Clements Trust, a/k/a The C.C. Clements Trust, Appellee (Plaintiff), and Kathleen Lore, Brendan Lore and Michaela Lore Klausmeyer, individually, Appellees (Defendants).
    No. 01-158.
    Supreme Court of Wyoming.
    Aug. 26, 2003.
    Rehearing Denied Sept. 30, 2003.

      Representing Appellant: Roger C. Fran-sen of Hickey, Mackey, Evans and Walker, Cheyenne, Wyoming.
    Representing Appellees: Walter Urbigkit of Frontier Law Center, Cheyenne, Wyoming.
    Before HILL, C.J.; GOLDEN, LEHMAN, and KITE, JJ.; and JEFFREY A. DONNELL, D.J.
   KITE, Justice.

[T1] Rock Springs Land and Timber, Inc. (Rock Springs) entered into a purchase agreement with American National Bank (ANB), as trustee (trustee), to purchase property owned by a trust. The agreement required court confirmation of the deal. The trial court declined to confirm the Rock Springs sale and, instead, confirmed a second purchase agreement with a higher price entered into by the trustee almost a year later. This second agreement failed to close. After considerable delay caused by intervening litigation, including an appeal to this Court, the trial court again rejected the Rock Springs agreement concluding that, although at the time it was signed it was a prudent decision by the trustee, the sale was no longer in the trust's best interests in light of the circumstances at the time of the court's decision. The trial court also confirmed the beneficiaries' replacement of ANB as trustee with a beneficiary, Brendan Lore (Brendan), as sue-cessor trustee. Rock Springs appeals from both the rejection of its purchase agreement and the appointment of Brendan as trustee. We reverse and remand.

ISSUES

[12] Rock Springs presents the following issues for our review:

I. Did the trial court err when it refused to confirm the purchase agreement between Rock Springs Land and Timber, Ince. and American National Bank?
II. Did the trial court err when it approved the designation of Brendan Lore as trustee of the C.C. Clements Trust?

FACTS

[13] Colista Combs Clements executed a trust agreement to provide for her financial needs until her death and for the financial needs of her beneficiaries thereafter. The surviving trust beneficiaries were Kathleen Lore (Kathleen), Brendan, and Michaela Lore Klausmeyer, and the principal trust asset was 6,769 acres of ranch property located north/northwest of Douglas in Converse County. The trust agreement directed "[t]he trust shall always be administered free from the active supervision of any court" and also had a "Spendthrift Clause" to preclude the beneficiaries' creditors from making claims on the beneficiaries' trust interests prior to actual receipt by the beneficiaries.

[14] In June of 1997, in the course of the administration of the trust long after Ms. Clements' death, ANB was appointed as trustee by court order. Thereafter, ANB sought to sell the ranch property in an effort to address the trust's significant liquidity problems resulting from the beneficiaries' income needs which exceeded the income generated by the trust property. The trust property was a portion of a ranch which had been partitioned in May 1999 pursuant to Wyo. Stat. Ann. § 1-82-108 (LexisNexis 2003) in settlement of other litigation. During the partition proceedings, court-appointed commissioners determined the value of the trust property to be approximately $805,000. In a June 29, 1999, letter to ANB, Kathleen and Brendan indicated they thought a fair valuation of the property was $1,065,000 based on prices of recently sold, neighboring properties.

[15] Charles Herron, president of Rock Springs, became aware through a third party that the trust property was for sale and, following a tour of the property with Brendan, negotiated a purchase agreement with ANB. This agreement, dated May 28, 2000, provided that Rock Springs would pay $1 million for the property, excluding mineral rights; make a $50,000 earnest money payment when the agreement was signed; and pay the balance in cash or certified funds at closing. The purchase agreement also provided the sale was subject to "confirmation" by the Eighth Judicial District Court and, if for any reason it was not "confirmed and ratified by the appropriate judicial authority," Rock Springs would be entitled to a refund of all earnest money paid and to declare the agreement null and void. The sale was originally scheduled to close "[wlith-in 80 days after June 26, 2000, at such time and place as mutually agreed by the parties."

[16] ANB sought the beneficiaries consent to the sale without success. On June 6, 2000, ANB filed a declaratory judgment action naming the beneficiaries as defendants and requesting the court to confirm the sale and authorize ANB to sell the property pursuant to the agreement. Kathleen filed an answer and counterclaim contending (1) the 1983 amendment to the trust entitled her to a greater portion of the proceeds from a sale than the other two beneficiaries would receive, (2) the Rock Springs sale amount was inadequate and not in the best interests of the trust or the beneficiaries, and (8) the court should reject the purchase agreement. In addition, the three beneficiaries jointly filed a separate answer alleging the Rock Springs sale price was inadequate, the sale was not in the trust's or their best interests, and it should be rejected. In December of 2000, the beneficiaries filed a motion requesting a scheduling conference and permission to file supplementary counterclaims. ANB filed a written objection to this motion, and, in April of 2001, the court set a hearing and scheduling conference for May 3, 2001.

[17] While the litigation was pending, Rock Springs and ANB extended the closing date at least three times. Despite having signed the Rock Springs agreement and seeking court confirmation, ANB continued to offer the ranch property for sale. Ultimately, ANB entered into a second purchase agreement on or about March 19, 2001, with Bruce Reed (Reed agreement) which provided a price of $1,800,000, $1,000 earnest money, and the balance of $1,799,000 to be paid at closing on August 15, 2001. However, the Reed agreement was contingent upon Mr. Reed selling certain coalbed methane leases for $10 million and included conveyance of twenty-five percent of the mineral rights.

[1 8] -On April 16, 2001, ANB filed a "Motion to Approve Sale of Trust Property" requesting the court to authorize the sale of the trust property under either the Rock Springs agreement or the Reed agreement. Rock Springs filed a motion for leave to intervene as a matter of right pursuant to W.R.C.P. 24(a) or, alternatively, by permission of the court under W.R.C.P. 24(b). Over ANB's and the beneficiaries' objections, the trial court permitted Rock Springs to intervene "only for the limited purpose of determining the issue of whether the court is required as a matter of law to approve the agreement between [ANB] and Rock Springs." The court ordered Rock Springs to file an appropriate complaint and disposi-tive motions and established a bifurcated process to hear its case and ANB's case separately. On the day of the hearing on ANB's motion, ANB and the beneficiaries entered into a stipulation, supplemented several days later, by which they agreed the court could enter an order approving the Reed agreement and distribute the sale proceeds to satisfy Kathleen's individual claim. The court issued an order rejecting the Rock Springs agreement "at this time" and authorized ANB to complete the sale with Mr. Reed with the proviso that, if the Reed agreement was not closed by August 81, 2001, the court's approval would terminate. On or about June 20, 2001, the court issued a separate written order denying Rock Springs' motion for summary judgment under W.R.C.P. 52(c). Rock Springs appealed from both orders.

[19] While the appeal was pending, the Reed sale failed to close, and ANB filed another motion with the trial court requesting approval of the Rock Springs agreement. Rock Springs also moved this Court to remand the matter to the trial court for consideration of ANB's motion. We granted the motion to remand, stayed the pending appeal, and ordered Rock Springs to report the status of the case to this Court within 150 days.

[T10] Before the hearing in the trial court on remand, the beneficiaries gave notice that they had removed ANB as the trustee and had designated Brendan, one of the beneficiaries, as the successor trustee. ANB filed a motion with the trial court requesting resolution of its status as trustee. Rock Springs responded contending Brendan was unqualified under the terms of the trust to act as trustee, Rock Springs was a bona fide purchaser, and ANB was trustee pending designation of a qualified trustee. The trial court held a hearing on all the pending motions on December 20-21, 2001. It determined ANB was no longer the trustee and Brendan had been properly designated as the successor trustee. The trial court also determined (1) at the time ANB signed the Rock Springs agreement, it was a "prudent and sound decision" by ANB as the trustee; (2) the Rock Springs agreement provided the court broad discretion to consider whether the sale was appropriate under the cireum-stances existing as of the hearing date, and not those present when the contract was signed; and (8) the trustee-Brendan-was not obligated to honor the Rock Springs agreement and was, therefore, relieved of that obligation.

[T11] In compliance with the order on remand, Rock Springs filed a report of the proceedings on remand with this Court and requested a briefing schedule. The beneficiaries filed a motion to dismiss the appeal, arguing Rock Springs failed to appeal from the trial court's order entered after the remand and contending the second order superseded the first and, therefore, the appeal of the first order was moot. The beneficiaries filed a second motion to dismiss because Rock Springs had secured return of the $50,000 earnest money though the funds were placed in escrow with instructions pending this Court's decision. The beneficiaries also filed a motion to allow Brendan to be substituted for ANB as had already occurred in the trial court proceeding on remand. This Court denied the motions to dismiss, ruling it had retained jurisdiction over the appeal while the matter was on remand making a second notice of appeal unnecessary and finding the escrow arrangement was sufficient to preserve the earnest money. In the same order, this Court permitted substitution of the successor trustee consistent with the trial court's order and established a briefing schedule permitting Rock Springs to refile its principal brief.

STANDARD OF REVIEW

[112] The issues presented in this appeal require construction of the terms of the trust agreement. This Court has stated, "The rules of construction of a trust agreement are simple. A trust agreement is governed by the plain meaning contained in the four corners of the document." Hronek v. Saint Joseph's Children's Home, 866 P.2d 1305, 1307 (Wyo.1994). In keeping with this premise, the following excerpt explains the applicable standard of review:

As a general rule, the interpretation of the language of a trust instrument constitutes a question of law. Matter of Home-Stake Prod. Co. Deferred Compensation Trust, 1979 OK 81, ¶ 8, 598 P.2d 1198, 1196. The "appellate court claims for itself plenary independent and non-deferential authority to reexamine a trial court's legal rulings" de novo. Kluver v. Weatherford Hosp. Auth., 1993 OK 85, ¶ 14, 859 P.2d 1081, 1084; Corr v. Corr, 2001 OK CIV APP 31, ¶ 11, 21 P.3d 642, 644. The courts strive to ascertain and effect the intent of the settlor, but parole evidence may not be considered "where there is no ambiguity and the language of a declaration of trust is clear and plainly susceptible of only one construction[:] the plain provisions of the trust instrument ... determine its construction." Home-Stake Production Co., 1979 OK 81, ¶ 8, 598 P.2d at 1196; Corr, 2001 OK CIV APP 31, ¶ 11, 21 P.3d at 644.

Baldwin v. McCoy (Mary Opal E. Reid Living Trust), 2002 OK CIV APP 49, ¶ 7, 46 P.3d 188, ¶ 7 (Okla.Civ.App.2002); see also Jeffs v. Stubbs, 970 P.2d 1234, 1251 (Utah 1998) (review of a trust instrument is a question of law); Taliaferro v. Taliaferro, 269 Kan. 722, 7 P.3d 1241, 1245 (2000) (review of a trust is a question of law).

DISCUSSION

A. Rejection of Rock Springs Agreement

[113] To address whether the trial court erred by refusing to confirm the Rock Springs purchase agreement, we must ascertain what standard the trial court should have applied by first examining the trust agreement's terms. The trust agreement provided the trust was to be administered without the active supervision of the court and the trustee would be permitted to deal with the trust property as natural persons would deal with their own property including sale thereof. It also provided the trustee could exercise those powers set forth in the Uniform Trustees Powers Act. Though the trust required a concurrence of a majority of trustees for certain matters pertaining to its administration, notably absent is any provision requiring the beneficiaries to approve a sale of trust property. The provision regarding consent of the majority of the trustees has no application here because, at all times relevant to this appeal, there was only one trustee.

[114] The trust's plain language gave ANB authority to sell the ranch property without the beneficiaries' approval. Hronek, 866 P.2d at 1307; see also Parrette v. Hutchison, 165 Cal.App.3d 157, 211 Cal.Rptr. 313, 315 (1985) (the trust document's language is the centerpiece of interpretation. Words are to be taken in their ordinary and grammatical sense unless a clear intention to the contrary can be ascertained). While a trustee may sua sponte seek the beneficiaries' agreement, unless the trust agreement so provides, their consent is not required.

[T15] In an apparent effort to avoid any question concerning the propriety of the sale, ANB sought the beneficiaries' consent to the sale pursuant to the Rock Springs agreement. Unable to obtain that consent, and probably in an effort to foreclose future challenges to the sale, ANB included a clause in the Rock Springs agreement as follows:

APPROVAL BY THE COURT: This sale is subject to confirmation by the Converse County District Court, Eighth] Judicial District, Probate No. 89-56 wherein [ANB] was appointed as Trustee of the Colista Combs Clements Trust. If for any reason the sale is not confirmed and ratified by the appropriate judicial authority, [Rock Springs] shall be entitled to receive all earnest money paid to date as a total refund under the Agreement and the right to declare the Agreement null and void and of no further force or effect.

[T16] ANB's and Rock Springs' rights and obligations under the sales agreement were not altered or suspended in any way pending the trustee's efforts to obtain court confirmation of the sale. Both parties were bound by the agreement as any other seller and buyer would be. However, since the Rock Springs agreement was conditioned upon court confirmation, the trustee continued to offer the property for sale and, ultimately, a year later, secured the second agreement-the Reed agreement. While that agreement provided a higher purchase price, it had other less attractive terms including a minimal earnest money deposit, the inclusion of mineral rights, and the condition precedent that the buyer must first sell certain coalbed methane leases for a minimum of $10 million.

[T17] The standard governing the trial court's consideration of the request to confirm the sale should be whether the trustee was acting in a reasonable and prudent manner at the time the agreement was executed, not whether it had obtained the highest price possible at the time the court acted.

[MJere inadequacy of price will not justify a court in refusing to confirm a sale, thus depriving the purchaser of the benefit of his bargain, unless the inadequacy is such as amounts to fraud. Where the inadequacy of price is accompanied by substantial irregularity which affects the rights of a party or parties to the proceeding, reviewing courts will sanction the disapproval of a sale. In this case the only reason appellee seeks disapproval of the sale is because more money was offered. The fact that events subsequent to a sale in good faith result in the trust estate being deprived of a substantial sum of money, does not outweigh the injustice which a denial of confirmation would work upon appellant.

Evans v. Hunold, 393 Ill. 195, 65 N.E.2d 373, 376 (1946) (emphasis added & citations omitted). This concept is reflected more recently in the following excerpt:

A trustee enjoys the discretion to make decisions regarding the disposition of the trust corpus, provided that he or she acts prudently. He or she is not obligated to accept the highest offer, if there are advantages to accepting the offer of another bidder. He or she cannot, however, direct benefits to non-beneficiaries at the expense of the beneficiaries.

Aloha Lumber Corporation v. University of Alaska, 994 P.2d 991, 1000 (Alaska 1999) (footnote omitted). This standard is also referred to as the prudent investor rule.

Overall trust performance is a factor in evaluating the performance of the trustee. But it is not by itself controlling. "The court's focus in applying the Prudent Investor standard is conduct, not the end result." J. Alan Nelson, The Prudent Person Rule: A Shield for the Professional Trustee, 45 Baylor L.Rev. 933, 939 (1993). The American version of the prudent investor rule began with the Harvard College case: " 'All that can be required of a trustee to invest, is, that he shall conduct himself faithfully and exercise a sound discretion. He is to observe how men of prudence, discretion, and intelligence manage their own affairs, not in regard to speculation, but in regard to the permanent disposition of their funds, considering the probable income, as well as the probable safety of the capital to be invested. " Nelson, 45 Baylor L.Rev. at 939 (quoting Harvard College v. Amory, 26 Mass. (9 Pick.) 446, 460-461 (1830). In Harvard College, the court recognized that trust assets could never be fully protected from the uncertainties of the market place; thus, the prudent investor standard was necessarily flexible. Nelson, 45 Baylor L.Rev. at 988.

Johnston v. Cooper, 81 Wash.App. 79, 913 P.2d 393, 398 (1996). Likewise, Wyo. Stat. Ann. § 4-8-1038 (LexisNexis 2001) (repealed 2008) authorized trustees to "perform, without court authorization, every act which a prudent investor would perform for the purposes of the trust."

[T18] In this case, the trial court found ANB's acceptance of the Rock Springs agreement was a prudent decision at the time it was made. Whether such a decision was prudent or not is a question of fact. Johnston, 913 P.2d at 398. The beneficiaries filed no appeal from that finding. Substantial evidence supported the court's finding. In May 1999, when the ranch was partitioned, the trust property was valued at approximately $805,000. In the same time frame, two of the three beneficiaries indicated in a letter they thought a fair valuation of the property was $1,065,000. A year later, Rock Springs offered $1 million and made a $50,000 earnest money payment. The mineral rights were not included, and no real estate commission was involved. Considering the record as a whole, we agree with the trial court that ANB acted prudently and reasonably when it entered into the Rock Springs agreement.

[119] However, since the Rock Springs agreement required court confirmation, we must determine whether that fact altered or diminished the trustee's authority. In D'Ottavio v. Union National Bank and Trust Company of Joliet (Estate of Masters), 152 Ill.App.3d 907, 105 Ill.Dec. 898, 505 N.E.2d 24, 27 (1987), the court considered the meaning of the phrase "subject to court approval" included in two competing contracts for sale of trust real property, the first contract having been accepted the night before the see-ond and offering a slightly higher purchase price. In D'Ottavio, as in the instant case, the trustee inserted the court approval provision even though it was not required by the trust, the will, or any statute. The court held:

[TThe insertion of the provision "Subject to Court Approval" in the [first] contract amounted to conditional acceptance of the offer to purchase rather than merely making the contract a conditional offer, The trustee-bank then owed [the first purchaser] the duty to use reasonable efforts to obtain court approval of the contract. Having entered into a binding contract with [the first purchaser] subject only to court approval, the trustee should not have entered into a subsequent contract to sell the property to another party. The equitable interest [the second purchaser] acquired under his contract with the trustee was subject to the [first purchaser's] interests under the prior transaction. This follows the general rule that where equities are otherwise equal, the older in point of time prevails It is conceded that the trustee, [the realty companies], and [the second purchaser] all had knowledge of the execution of the [first] contract on the day prior to when the agreement embodying the higher offer was ... executed.

D'Ottavio, 105 Ill.Dec. 898, 505 N.E.2d at 27 (citation omitted).

[120] We find this reasoning compelling and conclude that ANB conditionally accepted the Rock Springs agreement and had a duty to use reasonable efforts to secure court approval. The record reveals that, although ANB filed the declaratory judgment action promptly after executing the Rock Springs agreement, over a year passed before the parties obtained a hearing. Ultimately, the trustee joined with the beneficiaries to request approval of the later contract. This placed Rock Springs in the unenviable position of having to intervene in the ongoing litigation, where significant hostility had developed between the beneficiaries and the trustee, in order to protect its rights under the agreement ANB had conditionally accepted. The record indicates the beneficiaries made ANB's pursuit of court approval of the Rock Springs agreement difficult at best. The court eventually found that ANB had made a "prudent and sound decision" when it signed the Rock Springs agreement. On the basis of that finding, we can reasonably infer the trial court would have confirmed the Rock Springs agreement had there not been the delay caused by the beneficiaries' litigious actions.

[121] Despite finding the Rock Springs agreement was prudent, the trial court apparently concluded it must look beyond that fact and determine whether the sale was, a year later, in the trust's best interest. The beneficiaries argued this was the appropriate test because the Rock Springs agreement had provided for court confirmation and that fact alone warranted the court to undo what the trustee had done if it determined at a later date that a higher price could be obtained. The trial court found the court approval clause conveyed to it broad advisory and even supervisory powers over those matters within the trustee's authority and "require[d] judicial consideration of the benefit to the trust and the best interest of the Beneficiaries as a matter of the Court's exercise of discretion in decision." We disagree. The trustee's authority was not altered or diminished when the trustee simply asked the court to confirm the sale. The authority granted by the settlor could not be altered by an agreement between the trustee and a third party, essentially a stranger to the trust, to seek the protection of court confirmation of a proposed sale of property. Marvin F. Hall Trust v. Hall, 810 S.W.2d 710, 714 (Mo.Ct.App.1991).

[122] The court's authority to review a trustee's actions is limited to assuring the terms of the trust are met. The Restatement (Second) of Trusts provides:

Where discretion is conferred upon the trustee with respect to the exercise of a power, its exercise is not subject to control by the court, except to prevent an abuse by the trustee of his discretion. Comment:
c. Kinds of discretionary powers. The rule stated in this Section is applicable both to the powers of managing the trust estate conferred upon the trustee either in specific words or otherwise, and also to such powers as may be conferred upon him to determine the disposition of the beneficial interest. Thus, it is applicable not only to powers to lease, sell or mortgage the trust property or to invest trust funds, but also to powers to allocate the beneficial interest among various beneficiaries, to determine the amount necessary for a beneficiary's support, or to terminate the trust.

Restatement (Second) of Trusts § 187 & cmt. c at 402 (1959). Many jurisdictions have applied this rule and have limited review of trustee actions to determining compliance with the trust's terms, not replacing the trustee's judgment with that of the court. " 'To the extent to which the trustee has discretion, the court will not control his exercise of it as long as he does not exceed the limits of the discretion conferred upon him.' 2 Scott on Trusts (2d ed.1956) § 187 at 1374." Benadom v. Colby, 81 Md.App. 222, 567 A.2d 463, 468 (Ct.Spec.App.1989); see also Templeton v. Peoples National Bank of Washington, 106 Wash 2d 304, 722 P.2d 63 (1986); Miller v. First Hawaiian Bank, 61 Haw. 346, 604 P.2d 39, 42-43 (1979). The trial court's assumption of expansive authority over the trust because a trustee or beneficiary has asked for clarification of a narrow question penalizes the trustee. Benadom, 567 A.2d at 469.

This is illogical. Rather, the court should determine: (1) the extent of the Trustees' discretion under the Trust; (2) if the Trust instrument confers discretion on the Trustees regarding the matter in issue; and (8) if the court determines there is discretion on the matter at bar, the court defers, assuming the Trustees have acted honestly and reasonably.

Id.

Generally, a court of equity, as part of its general supervisory powers over trusts, has the authority to instruct and advise trustees about their powers and duties.
However, there are limits on a court's authority to advise and instruct trustees, the prime limitation being that such instructions should be given only when the trustees have reasonable doubt about their duties.... [C lourts should not serve as legal advisers to trustees. Thus, the purpose of a court's guidance to trustees is to protect the trustees "in those situations where the advice of competent lawyers is not sufficient protection because of doubtful meaning of the trust instrument or uncertainty as to the proper application of the law to the facts." [First National Bank v.] Christopher, 624 S.W.2d [474,] 481 [ (Mo.App.1981) ].

Marvin F. Hall Trust, 810 S.W.2d at 715 (some citations omitted & emphasis added).

[T23] Sound public policy supports giving effect to contracts entered into with trustees in good faith and for adequate consideration. Goldberg v. Strass, 11 Wis.2d 410, 105 N.W.2d 553 (1960). Prospective purchasers must be provided the certainty that their contracts will be honored in order for trusts to be able to function effectively. Id.; Evans, 393 Ill. 195, 65 N.E.2d 373. Rock Springs argues the policy is almost indistinguishable from that which promotes the integrity of sheriff's deeds such as was at issue in Luts v. Schmillen, 915 P.2d 599 (Wyo. 1996), abrogated on other grounds by Vaughn v. State, 962 P.2d 149, 151 (Wyo. 1998). We recently made reference to a similar policy in the context of foreclosure

Manion v. Chase Manhattan Mortgage Corporation, 2002 WY 49, 17, 43 P.3d 576, ¶ 7 (Wyo.2002), indicates this court's continued reticence to set aside or vacate a foreclosure sale absent clear prejudice and irregularity of the proceedings even when an inadequate price has been ...
.... [The [purchaser is] entitled to rely upon the sanctity and finality of the foreclosure process and to protect [its] interest.

McNeill Family Trust v. Centura Bank, 2003 WY 2, 11 14-20, 60 P.3d 1277, ¶¶ 14-20 (Wyo.2003).

[124] The record in this case discloses good reason for such finality. While an appraisal at the time of the original agreement supported the $1 million value, the beneficiaries presented a second appraisal dated a year later with a higher value. The court recognized the second appraisal "had some problems" and relied heavily on anecdotal information the successor trustee provided regarding ranch operations. The evidence also suggested the property's condition was improved after the first agreement was signed which may have increased the property's value, and Rock Springs argued it assisted in making the improvements. These changes in circumstances are typical in matters of real estate and demonstrate why a standard which allows the trustee's actions to be judged by proverbial "twenty/twenty hindsight" is problematic.

[T25] The trial court "also considered the resistance of the Successor trustee and the Beneficiaries" in refusing to confirm the Rock Springs agreement. We believe the court should have been governed by the settlor's intent, not the beneficiaries' preferences, when they were entitled to no more than the trustee's proper exercise of its fidu-clary duty. The trust's terms make it clear the settlor intended the trustee to exercise its judgment regarding what was in the trust's best interest without interference by the courts. This trust provided the trustee with authority to deal with trust property as any "natural person" would. While it is understandable a trial court may lean toward allowing the beneficiaries to have input into how the trust assets are managed, as a matter of law, when the court is asked to confirm a trustee's actions, the trust terms must govern, and the actions must be judged, in light of those terms, at the time the action is taken.

[126] The trial court improperly refused to confirm the Rock Springs agreement for the sole reason evidence existed that the property had a higher value over a year later. Once the trial court determined ANB acted in a prudent manner when it accepted the Rock Springs agreement, it should have confirmed that agreement. Therefore, we reverse and remand to the trial court for entry of an order of confirmation and authorization of the Rock Springs agreement consistent herewith.

B. Designation of Brendan as Trustee

[127] In yet another Byzantine twist in this case, after remand to the trial court for the second confirmation hearing, the beneficiaries removed ANB as trustee and purportedly replaced it with their fellow beneficiary, Brendan. Rock Springs argues the replacement of ANB with a beneficiary violated the trust's terms. In response, the beneficiaries contend Rock Springs has no standing to object to the replacement of the trustee and such replacement was proper.

[128] We - must - determine whether Rock Springs has standing to raise this issue on appeal. "Standing to sue is jurisdictional in nature and can be considered at any time in the course of litigation." Spratt v. Security Bank of Buffalo, 654 P.2d 130, 134 (Wyo.1982). "Standing is a legal concept designed to determine whether a party is sufficiently affected to insure that the court is presented with a justiciable controversy." Jolley v. State Loan and Investment Board, 2002 WY 7, T 6, 38 P.3d 1073, ¶ 6 (Wyo.2002).

The doctrine of standing is a jurisprudential rule of jurisdictional magnitude. At its most elementary level, the standing doctrine holds that a decision-making body should refrain from considering issues in which the litigants have little or no interest in vigorously advocating. Accordingly, the doctrine of standing focuses upon whether a litigant is properly situated to assert an issue for judicial or quasi-judicial determination. A litigant is said to have standing when he has a "personal stake in the outcome of the controversy." This personal stake requirement has been described in Wyoming as a "tangible interest" at stake. The tangible interest requirement guarantees that a litigant is sufficiently interested in a case to present a justiciable controversy.

Schulthess v. Carollo, 832 P.2d 552, 556-57 (Wyo.1992) (citations omitted); see also Sinclair Oil Corporation v. Wyoming Public Service Commission, 2008 WY 22, ¶ 11, 63 P.3d 887, ¶ 11 (Wyo.2003).

[129] The beneficiaries argue that, because Rock Springs' participation at the trial court level was limited to determining whether the court is required as a matter of law to approve the agreement between the Trustee and Rock Springs, it did not have standing to challenge the trustee's replacement. We do not believe the order granting intervention foreclosed Rock Springs from addressing new issues that arose in the course of the litigation such as the trustee replacement. Neither the trial court nor the beneficiaries took exception to Rock Springs' pleadings which urged the court to disapprove Brendan's appointment, indicating neither considered the order on intervention as preventing the same. However, since standing is jurisdictional, the failure of either the trial court or the beneficiaries to challenge Rock Springs' standing below does not foreclose the beneficiaries from raising that issue here.

[130] The contract right Rock Springs seeks to enforce would, under our standing jurisprudence, constitute a "legally protectable interest," thus satisfying the requirement of a personal stake in the outcome of the controversy. However, under the common law, as reflected in the Restatement (Second) of Trusts, no one other than the beneficiary or one suing on his behalf can maintain a suit against the trustee to enforce the trust. Restatement (Second) of Trusts § 200 (1959). Further, a person is not a beneficiary of the trust even though he might incidentally benefit from the performance of the trust. Seott on Trusts § 200 at 209 (1987). While a nonbeneficiary such as Rock Springs may not have standing to bring a direct challenge to the trust's administration where the court has properly obtained jurisdiction over a trust matter pursuant to the declaratory judgment statute and the trust's terms are being ignored, a court may take action to enforce the trust even though not called upon by a trustee to do so.

There is ... a modern tendency in the United States for a court that has supervision over the administration of trust estates to enforce the duties of the trustees even though not called upon by the benefi-claries to do so. The notion seems to be, although it is never very explicitly stated, that it is the function of the court to see that the directions of the settlor are carried out, even though no one complains to the court of the failure of the trustee to carry them out; that the court has administrative powers as distinguished from strictly judicial powers; that onee the court acquires jurisdiction over the administration of the trust, it is the function of the court to see that the trust is administered in accordance with the direction of the settlor. Thus in a case in Wyoming, the court said, "It was the duty of the court when it learned in any manner that the trustee was violating the terms of the trust to call it to account and to make such order in the premises as justice and equity required, and to see that the trust was faithfully executed." In a case in Wisconsin the court said that the lower court upon being apprised of the continued failure of the executor and trustee, for 12 years, to render any account, should upon its own motion have immediately cited him to render an account. In a case in Massachusetts it was held that the probate court could properly remove an executor in a proceeding brought by a person as a creditor, even though the person in fact was not a creditor. The court said that a court can properly act sua sponte. In a case in Pennsylvania it was held that the Orphans' Court might on its own volition, although no controversy or litigation is before it, order a trustee to rent a safe-deposit box. The court said that it had plenary powers over the administration of trusts until final distribution.
. The tendency of American courts has been to lay an increasing emphasis on the function of the court in carrying out the wishes of the settlor.

Scott on Trusts, supra, § 200.4 at 217-18 (footnotes omitted). In International Trust Co. v. Preston (Hicks' Estate), 24 Wyo. 163, 156 P. 1128 (1916), cited by Seott on Trusts, a trustee's investment in foreign securities was found improper when the will required the trustee to invest in only domestic bonds and securities. The trustee argued the court should not act on the claims made because not all the beneficiaries were parties and the surviving annuitant did not object to the foreign investments. This Court stated:

But this is not a civil action, but a proceeding in a trust estate over which the court had jurisdiction, and the trustee was before the court. It was the duty of the court, when it learned in any manner that the trustee was violating the terms of the trust, to call it to account and to make such order in the premises as justice and equity required, and to see that the trust was faithfully executed.

International Trust Co., 156 P. at 1132 (emphasis added). This commitment to the protection of the settlor's intent has continued in Wyoming jurisprudence as reflected in the more recent case of First National Bank and Trust Company of Wyoming v. Brimmer, 504 P.2d 1367, 1371 (Wyo.1973), wherein we stated:

The clearly expressed intention of the settlor should be zealously guarded by the courts, particularly when the trust instrument reveals a careful and painstaking expression of the use and purposes to which the settlor's financial accumulations shall be devoted. A settlor must have assurance that his solemn arrangements and instructions will not be subject to the whim or suggested expediency of others after his death.

Pursuant to this authority, we hold, onee a court has been properly called upon to become involved in trust matters, it has jurisdiction to take such action necessary to assure the settlor's intent is fulfilled.

[131] Article IX, Section 11 of the trust in this case provided:

After the death of Settlor, ... a majority of the beneficiaries ... may at any time and from time to time remove the Trustee and designate one or more replacements by giving thirty days' written notice to such Trustee. No notice of removal hereunder need give to the Trustee being removed any reason, cause or ground for such removal. If any Trustee shall die, resign, become incompetent, or cease to act for any other reason, the person or persons having the power of removal under this paragraph shall also have the power to fill any vacancy in the trusteeship by an instrument in writing executed within thirty days after the vacancy occurs. If any vacancy is not filled within a thirty day period, then any beneficiary or his or her legal guardian or conservator may petition a court of competent jurisdiction, ex parte, to name a successor trustee to fill such vacancy. By making any such designation, such court shall not thereby acquire any jurisdiction over the trust, except to the extent necessary for making such designation. Any successor trustee or trustees named hereunder shall be a bank or trust company situated in the United States and having trust powers under applicable federal or state law. Any such bank or trust company shall have a combined capital and surplus of at least two million dollars and assets for which the bank or trust company has sole or shared investment responsibility of at least twenty-five million dollars.

(Emphasis added.) It is obvious the settlor intended to limit the pool of potential successor trustees to banks or trust companies with established minimum assets. The beneficiaries argued, and the trial court apparently agreed, that the restriction with regard to successor trustees was to apply only when the court was called upon to designate such successor. We do not believe the trust's language can be read in that manner. It specifically states "any successor trustee named hereunder" must be a bank or trust company, not "any successor trustee named hereunder by the court." The reference to successors named "hereunder" is a clear reference to Section 11 of the trust in its entirety which is entitled "Removal and Replacement by Beneficiaries." Where a question of proper trust administration is so patent in a matter otherwise properly before us, we must give effect to the settlor's intent.

[132] While it may be argued that our willingness to intervene in trust matters on this issue is inconsistent with our previous holding that the trial court should refrain from interfering with the trustee's prudent exercise of its powers, we believe the two rulings are entirely consistent and guided by the same rule; e.g., we must give effect to the settlor's intent. By granting the trustee broad powers to deal with trust property as any other person could, the settlor intended the trustee's judgment should control the decisions regarding trust property, and, when the court was called upon long after the settlor's death to confirm the trustee's actions, the court's only role was to determine whether those actions were reasonable and prudent at the time. Confirmation of those actions would, therefore, give full effect to the settlor's intent. Likewise, the settlor's clear intent with regard to a successor trustee's selection commands that such successor be a bank or trust company, and that intent must be honored.

[133] We conclude the trial court erred by confirming the beneficiaries' appointment of Brendan as the successor trustee because he did not meet the trustee requirements set out in the trust agreement. In the absence of a qualified replacement, ANB remained as trustee. That is not to say the beneficiaries cannot replace ANB. However, such successor trustee must be

a bank or trust company situated in the United States and having trust powers under applicable federal or state law [with] a combined capital and surplus of at least two million dollars and assets for which the bank or trust company has sole or shared investment responsibility of at least twenty-five million dollars.

C. - Remaining Issues

[134] As noted above, the beneficiaries filed two motions to dismiss with this Court alleging (1) a second appeal was required to be filed from the trial court order on remand and (2) the matter is moot because the earnest money was paid into an escrow pending this Court's decision on the merits of the appeal. Both were denied, and yet the beneficiaries raise the issues again in their brief. We decline to reconsider our denial of these motions by which we held this Court retained jurisdiction over the appeal while the matter was on remand making a second notice of appeal unnecessary and found the escrow arrangement was sufficient to preserve the earnest money.

[T85] The beneficiaries also contend that Kathleen has an unresolved issue regarding her individual interest in the partitioned ranch property. ANB and the beneficiaries stipulated to a division of the sale proceeds addressing this alleged claim as it pertained to the Reed agreement. That agreement failed, and the matter was not raised before the trial court in relation to the renewed motion to confirm the Rock Springs agreement.

Our general rule is that we will not consider issues not raised in the court below. WW Enterprises, Inc. v. City of Cheyenne, 956 P.2d 353, 356 (Wyo.1998). There are only two exceptions to that rule: when the issue raises jurisdictional questions or it is of such a fundamental nature that it must be considered. Id.; Bredthauer v. TSP, 864 P.2d 442, 447 (Wyo.1993).

Cooper v. Town of Pinedale, 1 P.3d 1197, 1208 (Wyo.2000). The issue of Kathleen's interest does not fall within these exceptions, and we will not consider it further.

[136] The beneficiaries also argue the trial court suggested in its first refusal to confirm the Rock Springs agreement that Rock Springs was estopped from arguing the agreement should be confirmed because Rock Springs was aware ANB continued to offer the property for sale after the Rock Springs agreement was executed. However, the Reed agreement failed, and any estoppel argument attendant to it failed as well.

[137] Finally, the beneficiaries request an award of attorney fees without a clear articulation of the basis for their claim. The American rule, whereby each party is generally responsible for his own attorney fees and costs, applies in this jurisdiction. McNeill Family Trust, 2003 WY 2, ¶ 32, 60 P.3d 1277, Consistent with our precedent, we apply the rule to hold all the parties in this matter responsible for their own fees and costs. Alexander v. Meduna, 2002 WY 83, ¶ 49, 47 P.3d 206, ¶ 49 (Wyo.2002); Schlesinger v. Woodcock, 2001 WY 120, ¶ 21, 35 P.3d 1232, ¶ 21 (Wyo.2001); Cline v. Rocky Mountain, Inc., 998 P.2d 946, 949 (Wyo.2000).

[188] Reversed and remanded.

      . The appellees' brief indicates, without record citation, that Ms. Clements died in December of 1986. The date of Ms. Clements' death does not impact the resolution of this appeal but does provide some historical perspective relative to ANB's appointment as trustee.

      . Article IX, Section 3 of the trust (emphasis added) provided in pertinent part:
      The trust shall always be administered free from the active supervision of any court.... Proceedings to seek instructions or court determinations shall be initiated in the appropriate state court having original jurisdiction of matters relating to the construction and administration of trusts.

      . Article X, Section 4 of the trust (emphasis added) provided:
      The Trustee may sell, lease, transfer, exchange or otherwise dispose of, or grant options with respect to, any and all property at any time forming a part of the trust estate, in such a manner, at such time or times, for such other purposes, for such periods of time whether ending before or after the term of the trust, for such consideration and upon such terms, credits and conditions as it deems advisable, and may make and deliver such deeds, leases and other instruments as it considers proper under the circumstances, and may deal with the trust estate in all other ways in which a natural person could deal with his own property.


source: Caselaw Access Project

license: Public Domain

text:
    2003 WY 103
    Eduardo VLAHOS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 02-154.
    Supreme Court of Wyoming.
    Aug. 27, 2003.

      Representing Appellant: Kenneth M. Ko-ski, State Public Defender; Donna D. Do-monkos, Appellate Counsel; and Ryan R. Roden, Senior Assistant Appellate Counsel.
    Representing Appellee: Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; and D. Michael Pauling, Senior Assistant Attorney General.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   KITE, Justice.

[T1] Eduardo Vlahos appeals from his conviction for conspiracy to commit aggravated robbery under Wyo. Stat. Ann. §§ 6-L-308(a) and 6-2-401(a) and (c)(ii) (LexisNexis 2008), claiming violation of his right to a speedy trial, insufficiency of the evidence, ineffective assistance of counsel, and improper jury instructions on the law of accomplice/coconspirator testimony. We find no error and affirm.

ISSUES

[T2] Mr. Viahos presents the following issues:

ISSUE I
Whether Appellant was denied his right to a speedy trial when the trial court failed to bring him to trial within 120 days from his arraignment and failled] to obtain the Wyoming Supreme Court's permission to extend his trial date beyond 180 days from arraignment before the 180 days elapsed?
ISSUE II
Was the evidence insufficient to convict Appellant of conspiracy to commit aggravated robbery, as sufficient independent evidence did not exist to corroborate accomplice/co-conspirator testimony?
ISSUE III
Whether the trial court erred by failing to instruct the jury on the applicable law in Wyoming regarding accomplice/co-conspirator testimony, and by failing to give the jury a cautionary instruction regarding accomplice/eo-conspirator testimony?
ISSUE IV
Did plain error occur[ ] when the trial court failed to instruct the jury on the law regarding accomplice/co-conspirator testimony and the requirement that independent evidence corroborate such testimony, and [failed] to either find as a matter of law that certain witnesses were accomplices/co-conspirators or [submit] that question to the jury?
ISSUE V
Did Appellant receive ineffective assistance of counsel when trial counsel failed to request the trial court to give the jury instructions regarding testimony of accomplices and co-conspirators?

The State of Wyoming phrases the issues as:

I. Was Appellant denied his rights to a speedy trial?
II. Was the evidence sufficient to support Appellant's conviction of conspiracy to commit aggravated robbery?
III. Did error, plain or otherwise, occur due to any failure to instruct the jury regarding the testimony of accomplices or co-conspirators, or can defense counsel be deemed ineffective for failing to seek such instructions?

FACTS

[13] On May 3, 2001, two men robbed Security First Bank in Cheyenne. Mr. Via-hos and his sixteen-year-old half-brother, Marco Buckley, were arrested in connection with the robbery and charged with aggravated robbery and conspiracy to commit aggravated robbery.

[14] The case went to trial on December 17, 2001. Among the state's witnesses were Mr. Buckley, Matthew Munoz, Justin Hos-kins, Jessie Ray Walters, and Kimberly Ross, each of whom testified concerning his or her participation in or knowledge of plans by Mr. Vlahos and Mr. Buckley to rob a bank.

[15] Mr. Buckley testified that, beginning in April 2001, he had numerous conversations with Mr. Viahos about robbing a bank in Colorado or Cheyenne. Together, he and Mr. Viahos discussed the robbery with others, including Mr. Munoz, Mr. Hoskins, and Mr. Walters. He and Mr. Vlahos planned the details of the robbery, including that they would wear masks, hats, gloves, and colored contact lenses and use false names. They went together to purchase the masks, steal the gloves, and borrow the gun used in the robbery. They planned the respective roles they would play once they were inside the bank, ultimately deciding that Mr. Buckley would hold the gun while Mr. Viahos got the money. Mr. Buckley described what occurred inside the bank, testimony that was corroborated by bank employees who were working that day. He identified himself and Mr. Vlahos in photographs taken by the bank security camera. He described what happened after they left the bank and what they did with the money they took from the bank.

[T6] Mr. Hoskins testified that in early April 2001 he was involved in conversations with Mr. Vlahos, Mr. Buekley, and Mr. Munoz about robbing a bank in Fort Collins, Colorado. Mr. Hoskins was to be the driver, Mr. Munoz was to be the lookout, and Mr. Vlahos and Mr. Buckley were to rob the bank. Within a couple of weeks of that conversation, Mr. Hoskins was arrested on unrelated charges and placed in Frontier Correctional System, and he had no more involvement in discussions with Mr. Vlahos about robbing a bank.

[17] Mr. Walters also testified that he was involved in discussions with Mr. Vlahos and Mr. Buckley about robbing a bank. He corroborated the testimony about the plan to wear gloves, masks, and colored contact lenses. He testified that Mr. Vlahos seemed to be "the brains of this operation," the person who "thought it out," and seemed to have some experience with robberies. Mr. Walters said he dropped out of the discussions in late April 2001 after he realized Mr. Vlahos and Mr. Buckley were serious about robbing a bank.

[18] Mr. Munoz testified that he, Mr. Vlahos, Mr. Buckley, and Mr. Hoskins talked five or six times about robbing a bank in Colorado. He said Mr. Vlahos did most of the talking during these discussions. Mr. Munoz dropped out of the discussions after he had a falling out with Mr. Buckley about a month before the robbery occurred.

[19] Ms. Ross, who was Mr. Viahos' girlfriend, testified that she overheard discussions between Mr. Vlahos and Mr. Buckley about robbing a bank. Mr. Hoskins, Mr. Walters, and Mr. Munoz were part of some of the discussions. She heard them disceuss-ing details of the plan, including wearing masks, gloves, and colored contact lenses, using walkie-talkies and a police scanner, and carrying a gun. She also testified that, on the day of the robbery, Mr. Vlahos and Mr. Buckley came to her house with a black duffel bag. She said they were nervous and agitated and removed an object from the bag. They banged the object on the floor to get it open, and inside was a large amount of money, some of which they distributed to her and others.

[¢¥10] On December 19, 2001, the jury found Mr. Vlahos not guilty of aggravated robbery but guilty of conspiracy to commit the same. The trial court sentenced him to serve a term of not less than twenty-two years nor more than twenty-five years in the Wyoming Department of Corrections.

DISCUSSION

A. Speedy Trial

[T11l] Mr. Vlahos claims he was denied his right to a speedy trial because the trial court did not bring him to trial within 120 days of his arraignment, did not obtain this Court's permission to continue his trial beyond 180 days from arraignment, and denied his request for dismissal as a result of W.R.Cr.P. 48(b) violations. The state contends there was no speedy trial violation because Mr. Vlahos in essence consented to, and in some cases requested, the delays and has not shown that prejudice resulted from the delays.

[T12] We review a speedy trial claim according to the mandates of W.R.Cr.P. 48(b) and, where necessary, the four-part constitutional test articulated in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Hauck v. State, 2001 WY 119, ¶ 12, 36 P.3d 597, ¶ 12 (Wyo. 2001). Mr. Viahos was arraigned before the amendment to W.R.Cr.P. 48(b) became effective; therefore, we use the version of that rule which was in effect prior to September 1, 2001. Under W.R.Cz.P. 48(b)(2), eriminal charges had to be brought to trial within 120 days after arraignment unless the trial was continued in accordance with W.R.Cr.P. 48(b)(4) and (5), which provided:

(4) Continuancees not to exceed six months from the date of arraignment may be granted by the trial court as follows:
(A) On motion of defendant supported by affidavit; or
(B) On motion of the attorney for the state or the court if:
() The defendant expressly consents;
@) The state's evidence is unavailable and the prosecution has exercised due diligence; or
(iii) Required in the due administration of justice and the defendant will not be substantially prejudiced; and
(C) If a continuance is proposed by the state or the court, the defendant shall be notified. If the defendant objects, the defendant must show in writing how the delay may prejudice the defense.
(5) Any request to continue a trial to a date more than six months from the date of arraignment must be directed to the court to which appeals from the trial would be taken and may be granted by that court in accordance with paragraph (4).

(Emphasis added.)

[113] The amended version of this rule, which was effective September 1, 2001, requires criminal charges to be brought to trial within 180 days following arraignment. The amended version also changes the "six month" time period in W.R.Cr.P. 48(b)(4) and (5) to "180 days." Mr. Vlahos concedes the old version of the rule applies.

[T14] The record reflects the following events concerning the speedy trial issue. Mr. Vlahos was arraigned on June 8, 2001, and the trial began on December 17, 2001-192 days later. By order dated June 12, 2001, the trial court set the trial to begin on September 17, 2001-101 days after the arraignment and within the 120 days mandated by the rule The June 12, 2001, setting order advised the parties as follows:

This case is hereby, and one or more others have been or may be set for jury trial on the 17th day of September, 2001, at 9:00 a.m. If on that date, this case and one or more others remain for trial (have not been disposed of by plea or agreement for plea) one will go to trial and the others will be continued, pursuant to Rule 48(b), W.R.Cr.P.
Between the date of this Order and the trial date, the attorneys for the State and the Defendant shall confer with one another and Louise Anderson of the Court to determine which of the remaining cases will be tried on the trial date above and which will be continued.
If any subsequent trial date to which the captioned case is continued is more than 120 days after the date of arraignment, and if the attorney for the defendant objects on the basis of Rule 48, the attorney shall forthwith file and serve on other counsel and the Judge, a statement of how, if at all, the delay may prejudice the defense. If prejudice is shown, counsel and the Court will confer concerning an alternative setting.
This order is pursuant to the mutual obligation of all counsel and the Court to insure speedy trial

(Emphasis added.)

[1 15] - On August 7, 2001, Mr. Viahos filed a demand for a speedy trial. Thereafter, the September 17 trial date came and went without a trial or an objection by the defense. The 120 days provided for in W.R.Cr.P. 48(b)(2) also came and went with no action by the court and no objection by the defense. On October 30, 2001, three weeks after the 120 days expired, the trial court issued a stacked setting order resetting the trial for November 13, 2001, the same date on which fourteen other cases were scheduled for trial. Mr. Vlahos case was stacked eighth, meaning his trial would occur on November 18, 2001, only if seven other cases scheduled for trial on that day were resolved. The setting order again advised the parties that the trial date was contingent on resolution of other cases, Mr. Vlahos trial would be continued again if the other cases were not resolved, and speedy trial concerns must be brought to the court's attention. No objection or statement of prejudice was filed on behalf of Mr. Vlahos.

[116] Like the first trial date, the November 13, 2001, trial date came and went without a trial or an objection. On November 30, 2001, the court issued a third order setting the case for trial. By that order, Mr. Viahos' case was stacked behind two other cases for trial on December 10, 2001-185 days from the arraignment date. The order contained the same language quoted above concerning the scheduling of more than one case for trial on the same day; counsels obligation to confer with each other and the court; and defense counsel's obligation, if the trial setting was more than 120 days beyond arraignment, to object and file a statement of how prejudice might result from the delay.

[T17] Six days later, on December 6, 2001, Mr. Vlahos filed a motion to dismiss for lack of a speedy trial claiming the trial court violated W.R.Cr.P. 48(b) when it continued the trial for more than 180 days after arraignment without filing a request with the Wyoming Supreme Court in accordance with W.R.Cz.P. 48(b)(5). The state responded, arguing the motion should be denied because Mr. Vlahos caused the delay and did not show prejudice. Specifically, the state argued the initial delay was due to Mr. Vla-hos' change of counsel and later delays were due to the new counsel's representation that she needed additional time in which to prepare and agreement to file a waiver of Mr. Vlahos' right to a speedy trial, The state further asserted Mr. Vlahos' motion to dismiss was a surprise and contrary to his defense counsel's statement that she would request a continuance of the trial. The trial court's administrative assistant filed her affidavit, stating that, in setting cases for trial, she conferred with trial counsel, she was informed the defense wanted a trial date beyond 180 days from arraignment and intended to waive speedy trial rights, and she relied on representations to that effect in setting the trial date beyond the time authorized by W.R.Cr.P. 48(b).

[118] On December 7, 2001, the state filed a motion with this Court pursuant to W.R.Cr.P. 48(b)(5) requesting an order allowing the trial court to continue the trial beyond six months after the arraignment. On the same day, the trial court entered an order setting the case for trial on December 17, 2001. A hearing was held on Mr. Viahog' motion to dismiss on December 12, 2001, at which time the trial court denied the motion. Also on December 12, this Court entered an order granting the state's request to allow the trial court to continue the trial beyond six months from the arraignment. The trial began December 17, 2001-192 days after the arraignment.

[119] As these facts demonstrate, the trial court twice continued the trial, onee from September 17 and then again from November 13, because other cases scheduled ahead of Mr. Vlahos' case were set for the same days as his trial was scheduled. These continuances were "[rlequired in the due administration of justice" under W.R.Cr.P. 48(b)(4)(B)(iii) because of the trial court's crowded docket. Germany v. State, 999 P.2d 63, 66 (Wyo.2000). A trial court's decision to grant a continuance under these cireum-stances is appropriate. Id. Despite the notice resetting the trial, alerting Mr. Vlahos that his case was set behind a number of others, and requiring him to file a statement of prejudice if he objected to delaying the trial, Mr. Vlahos filed no objection or statement of prejudice when his case was not tried within 120 days and was rescheduled for trial on November 18. We hold the trial court did not err in continuing the trial to November 13 since Mr. Vlahos had the opportunity to object and demonstrate prejudice under W.R.Cr.P. 48(b)(€)(C) and failed to do so.

[120] We turn to the question of whether a speedy trial violation occurred when the court continued the trial a second time to December 10, 2001. Mr. Vlahos asserts "six months" as used in the version of W.R.Cr.P. 48(b) in effect at the time meant "180 days"; December 10, 2001, was more than 180 days from June 8, 2001; and, therefore, the trial court violated W.R.Cr.P. 48(b) when it continued the trial to December 10. We disagree. The word "month," unless otherwise defined, means "calendar month," or the time from any day of any of the months in the calendar to the corresponding day, if any, of the next month or, if not any, to the last day of the next month. Black's Law Dictionary 1007 (6th ed.1990). Under this definition, six months from the June 8, 2001, arraignment fell on December 8, 2001-2 Saturday. Pursuant to W.R.Czr.P. 45(a), when the last day in computing a period of time falls on a Saturday, a Sunday, or a legal holiday, the period runs until the next day which is not a Saturday, a Sunday, or a legal holiday. In this case, that day was Monday, December 10, 2001.

[T21] Having concluded that December 10, 2001, was within six months from the date of arraignment, we consider whether the other requirements of W.R.Cr.P. 48(b) were met. As was the case with the continuance from September 17 to November 18, the record indicates the continuance from November 13 to December 10 was required in the due administration of justice-the November 18 setting was a stacked setting, and one of the other stacked cases was tried on that date necessitating a second continuance of Mr. Vlahog' case. The trial court's decision to grant a continuance under these circumstances was appropriate. - Germany, 999 P.2d at 66. Our inquiry does not end there, however, because, unlike the November 13 setting to which no objection was made, Mr. Vlahos filed a motion to dismiss for lack of a speedy trial in response to the December 10 setting.

[122] W.R.Cr.P. 48(b)(4)(C) provided: "[I]f the defendant objects [to a continuance proposed by the court], the defendant must show in writing how the delay may prejudice the defense." Mr. Viahos' motion included no assertion of prejudice which might result from the delay. It does not, therefore, comply with W.R.Cr.P. 48(b)(4)(C). We have said compliance with the terms of W.R.Cr.P. 48(b) is mandatory. Taylor v. State, 2001 WY 13, ¶ 8, 17 P.3d 715, ¶ 8 (Wyo.2001). Absent a statement concerning how he might have been prejudiced by the delay, we hold the trial court acted appropriately in denying the motion to dismiss.

[123] Mr. Vlahos next contends his speedy trial right was violated when the trial was continued yet again to December 17, 2001, without a timely request to continue the trial being directed to this Court as provided in W.R.Cr.P. 48(b)(5), which addressed continuances beyond six months from arraignment. Mr. Vlahos argues in essence that both the state's request and this Court's order granting that request were untimely.

[124] There is no question the December 17 trial date was more than six months from the date of arraignment. Pursuant to the rule, therefore, a request for continuance was to be directed to and considered by this Court in accordance with W.R.Cz.P. 48(b)(5). As set forth above in the recitation of facts relating to the speedy trial claim, the state submitted a motion to this Court on December 7, 2001-the day before the six-month period ended. Although this Court did not enter its order granting the motion until December 12, 2001, W.R.Cr.P. 48(b)(5) contains no requirement that the order be entered within the six-month period. The rule speaks to the "request to continue a trial to a date more than six months from the date of arraignment." W.R.Czr.P. 48(b)(5) (emphasis added). At most, the conclusion that might be reached from this language is that requests to continue trials more than six months from date of arraignment must be filed within the six-month period. That was done, and so we hold there was no speedy trial violation, particularly under the facts of this case where the evidence indicated defense counsel represented to the trial court and the state that Mr. Vlahos wanted the trial continued beyond the six-month period, representations the court relied on in continuing the trial. Mr. Vlahog' citation to our abbreviated opinion in Hallock v. State, No. 00-326 (Nov. 1, 2001) (per curiam), does not change this result. Hallock is distinguishable from this case in that no request to continue the trial beyond the six months was ever made to this Court and the state conceded that fact.

B. Sufficiency of the Evidence

[125] Mr. Vlahos sufficiency of the evi-denee claim is twofold. First, he claims the state relied exclusively on testimony from accomplices or coconspirators and such testimony was not sufficient by itself to support a conviction for conspiracy under Wyoming law. Second, he contends, even if all the witnesses were not accomplices or coconspir-ators, the only witness whose testimony connected him with acts in furtherance of the conspiracy-Mr. - Buckley-was unquestionably an accomplice or coconspirator. Without corroboration of Mr. Buckley's testimony by other witnesses, Mr. Vlahos argues, there was insufficient evidence to support the con-vietion. The state contends Mr. Vlahos' underlying premise is incorrect. It asserts a conviction may be upheld under Wyoming law upon the uncorroborated testimony of accomplices. According to the state, no testimony corroborating the testimony of Mr. Buckley or the other witnesses was necessary.

[126] In presenting his arguments, Mr. Vlahos blurs the terms accomplice and cocon-spirator but argues law applicable to cocon-spirators. The state for its part ignores the law relating to coconspirators, focusing instead on the law applicable to accomplices. Because these are two distinct concepts involving two distinet rules of law, we provide the following discussion for purposes of clarification. '

[127] An accomplice, or accessory before the fact, is a person who knowingly aids or abets in the commission of a felony or who counsels, encourages, hires, commands, or procures a felony to be committed. Wyo. Stat. Ann. § 6-1-201(a) (LexisNexis 2003); Wheeler v. State, 691 P.2d 599, 601 (Wyo. 1984). To fall within this definition of accomplice, a person must actively participate in or encourage the crime and have the intent to accomplish the same criminal end as the principal. Wheeler, 691 P.2d at 601. For a defendant to be convicted as an accomplice, it must be proven that someone committed the substantive criminal offense and the defendant associated himself with and participated in the accomplishment and success of the criminal venture. Virgilio v. State, 834 P.2d 1125, 1127 (Wyo.1992).

[¶28] Wyoming law is that a conviction may be had upon the unsupported testimony of an alleged accomplice. Vigil v. State, 926 P.2d 351, 360 (Wyo.1996). Thus, in Wyoming as well as in other states that follow the common law, no corroboration of accomplice testimony is required, and a conviction can be sustained on such testimony alone if it is convincing and credible. Ostrowski v. State, 665 P.2d 471, 487 (Wyo. 1983); Filbert v. State, 436 P.2d 959, 960 (Wyo.1968). Application of this principle to the present facts leads to the conclusion that no corroborating evidence was required if the witnesses Mr. Vlahos refers to could be properly characterized as accomplices.

[T29] Turning to the question of coconspirators, conspiracy is defined in Wyoming as follows:

(a) A person is guilty of conspiracy to commit a crime if he agrees with one (1) or more persons that they or one (1) or more of them will commit a erime and one (1) or more of them does an overt act to effect the objective of the agreement.
(b) A person is not liable under this section if after conspiring he withdraws from the conspiracy and thwarts its success under cireumstances manifesting voluntary and complete renunciation of his criminal intention.

Wyo. Stat. Ann. § 6-1-303(a), (b) (LexisNex-is 2008). In numerous cases decided in this jurisdiction and elsewhere, the rule has evolved that a coconspirator's out-of-court statement is not sufficient to support a conspiracy conviction; corroborating evidence is required. Jasch v. State, 563 P.2d 1327, 1334 (Wyo.1977). This rule developed because, although such statements are not considered hearsay under W.R.E. 801(d)(2)(E), their use at trial raises concerns about reliability since the declarant is not subject to cross-examination or juror serutiny. Under the rule, the trial court, prior to admitting the coconspirator statement, must determine independent evidence exists showing (1) a conspiracy existed, (2) the declarant and the defendant were involved in the conspiracy, and (8) the statement was made during the course of and in furtherance of the conspiracy. Jandro v. State, 781 P.2d 512, 521 (Wyo.1989). Mr. Vlahos argues this rule extends not only to a coconspirator's out-of-court statement but to a coconspirator's in-court testimony, such as Mr. Buckley's testimony at his trial. In support of this assertion, he cites Grable v. State, 649 P.2d 663 (Wyo.1982), a case involy-ing use at the defendant's retrial of cocon-spirator testimony given at his first trial.

[1380] In considering whether sufficient evidence supported the conspiracy conviction in (Grable, this Court cited the rule that evidence independent of the coconspirator's statement must be presented. We then examined the evidence other than the cocon-spirator's prior testimony and upheld the conviction on the basis of that evidence. Grable, 649 P.2d at 677. While this Court did not expressly hold that evidence independent of a coconspirator's in-court testimony must be presented, the approach taken might be read to suggest that is so. Courts that have expressly addressed the question, however, have reached a contrary result.

[T31] In United States v. Smith, 692 F.2d 693, 697 (10th Cir.1982), the defendant challenged the trial court's admission of a coconspirator's in-court testimony contending that such testimony was proper only after independent evidence showed a conspiracy existed. The court of appeals stated:

The flaw in Smith's argument is simply that Rule 801(d)(2)(E) and the cases construing it are irrelevant to the direct testimony of a coconspirator. By definition, hearsay is "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." Fed.R.Evid. 80l(c) (emphasis added). There is absolutely no need to fit [the coconspirator's] in-court statements into the coconspirator provision of Rule 80l(d)(2)(E). [The coconspirator's] testimony constituted sufficient independent evidence of a conspiracy and Smith's participation therein.

692 F.2d at 697-98 (citation omitted).

[132] Faced with the same argument in Laughlin v. United States, 385 F.2d 287, 292 (D.C.Cir.1967), the court said the argument was based on a misunderstanding of the rule requiring evidence independent of a cocon-spirator's statement to establish a conspiracy existed. "That rule," the court said, "applies only to out-of-court (e., hearsay) statements of a eoconspirator. It does not exelude proof of a conspiracy by the direct testimony under oath of a party to it." (citation omitted). 385 F.2d at 292 (citation omitted).

[133] Similarly, in United States v. Szabo, 789 F.2d 1484, 1487 (10th Cir.1986), the court upheld a conspiracy conviction over the defendant's objection that it was based upon coconspirator testimony. The court quoted Smith, 692 F.2d at 697-98, for the principle that the requirement of evidence independent of a coconspirator's out-of-court statement does not apply to a coconspirator's in-court testimony and then said:

There is no constitutional requirement that such testimony be examined for trustworthiness before being placed before the jury. Rather, the Confrontation Clause, in its optimum application, envisions: "[A] personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief" Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 39 L.Ed. 409 (1895)....

789 F.2d at 1487.

[134] These cases - are - persuasive. Jasch, 563 P.2d 18327, to which the Grable Court cited, involved a coconspirator's out-of-court statement. All the other Wyoming cases requiring independent evidence of conspiracy, except Grable, likewise involved a coconspirator's out-of-court statement where there was no opportunity to cross-examine the declarant or for the jury to assess his reliability. Under those cireumstances, evidence independent of the coconspirator's statement corroborating the conspiracy is necessary. For the reasons quoted from Szabo, 789 F.2d at 1487, above, the same concerns do not arise when the coconspirator provides direct testimony at trial.

[1385] We hold that independent evidence corroborating a conspiracy is not necessary when a coconspirator appears at trial and presents direct testimony of the conspiracy and the defendant's involvement therein. A coconspirator's in-court testimony is sufficient independent evidence to support a conspiracy conviction. We overrule Grable to the extent it can be read to say such evidence is not sufficient and independent evidence is required even when the coconspirator testifies at trial.

[136] Having attempted to clarify Wyoming law on accomplice statements and coconspirator testimony, we turn to the specific question of whether sufficient evidence supported Mr. Viahos' conviction for conspiracy to commit aggravated robbery. The standard of review for sufficiency of the evidence issues is well established:

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

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

[137] Mr. Vlahos identifies five witnesses as "accomplices/coconspirators" whose testimony against him, he claims, was insufficient to support the conviction absent independent evidence: Mr. Buckley, Mr. Munoz, Mr. Hos-kins, Mr. Walters, and Ms. Ross. All these witnesses appeared and testified at trial and were subjected to defense counsel's cross-examination. Because we concluded that co-conspirators' in-court testimony as well as accomplices' statements can support a conviction without independent corroborating evi-denee, it is not necessary for us to consider whether the five witnesses identified by Mr. Viahos were accomplices or coconspirators. Even if we assume they properly fell into either category, corroborating evidence of their testimony was not required under Wyoming law.

[T88] We look first to Mr. Buckley's testimony. He provided direct testimony that he and Mr. Vlahos planned and carried out the bank robbery. He described details of the planning discussions, the robbery itself, and what occurred in its aftermath. The jurors had the opportunity to observe Mr. Buckley, scrutinize his demeanor, and determine for themselves whether he was credible. Apparently, they found his testimony that Mr, Viahos was involved in planning the robbery credible but were not convinced Mr. Vlahos actually participated in the robbery. Under our rules of law concerning accomplice statements and coconspirator testimony, Mr. Buckley's testimony was sufficient independent of the other evidence presented to support the conviction on the conspiracy charge.

[139] Mr. Haskins, Mr. Walters, and Mr. Munoz each testified that Mr. Vlahos was very much involved in planning the robbery. Mr. Walters testified that Mr. Viahos was the leader of the plan to rob the bank. Mr. Munoz similarly testified that Mr. Vlahos did most of the talking during the planning discussions. The testimony of these three witnesses, considered in light of the other evidence presented, was sufficient to support the conviction.

[140] Ms. Ross testified that she overheard discussions between Mr. Vlahos and the others concerning robbing a bank. She further testified that, on the day of the robbery, Mr. Vlahos and Mr. Buckley came to her house with a large amount of money which they distributed among themselves and others. Her testimony describing the clothes they were wearing matched the photographs taken by the bank security camera.

[T41] We assume the jury duly considered all the testimony and gave it the weight to which it was entitled. Vargas v. State, 963 P.2d 984, 991 (Wyo.1998). Given the substantial evidence from a variety of witnesses of Mr. Viahos' involvement in an agreement to commit bank robbery, we uphold his conspiracy conviction.

C. Failure to Properly Instruct the Jury

[142] Mr. Vlahos claims the trial court failed to properly instruct the jury on Wyoming law concerning accomplice/eocon-spirator testimony. Specifically, he claims error occurred when the trial court did not instruct the jury that conspiracy cannot be proved by the testimony or statement of a coconspirator alone and accomplice testimony must be viewed with caution and supported by corroborating evidence. Defense counsel offered no such instructions, nor did she object to the trial court's proposed instructions. We, therefore, review the claim under the plain error standard, and Mr. Vlahos must prove that a clear and unequivocal rule of law was violated in a clear and obvious way resulting in denial of a substantial right and material prejudice. Urbigkit, 2003 WY 57, ¶ 41, 67 P.3d 1207.

[143] As discussed in the preceding seetion of this opinion, the clear and unequivocal rule of law in Wyoming and elsewhere has been that conspiracy cannot be proved by a coconspirator's out-of-court statement alone; however, a coconspirator's in-court testimony is sufficient to sustain a conspiracy conviction. Thus, the trial court did not violate a clear and unequivocal rule of law by not instructing the jury to that effect, and Mr. Vlahos has not established plain error occurred in that regard.

[T 44] Without citing any Wyoming cases, Mr. Vlahos argues that plain error occurred when the trial court failed to give an instruction cautioning the jury that accomplice testimony should be viewed with care and should not be the basis for a conviction absent corroborating evidence. As set out above, Wyoming law is clear that a conviction may be had upon an accomplice's uncorroborated testimony. Ostrowski, 665 P.2d at 487. Therefore, no plain error occurred when the trial court failed to instruct the jury that corroborating evidence was required.

[145] As for whether plain error occurred when the trial court did not give a cautionary instruction concerning accomplice testimony, we said in Jaramillo v. State, 517 P.2d 490, 492 (Wyo.1974) (emphasis added):

On the general subject of instructions concerning accomplices, we find some guidance in Judge Blume's analysis in State v. Grider, 74 Wyo. 88, 284 P.2d 400, 407, 74 Wyo. 111, 288 P.2d 766, when he noted that the court had discussed accomplice instructions in State v. Callaway, 72 Wyo. 509, 267 P.2d 970, holding that where the testimony necessary to convict is given by an accomplice without corroboration the trial court must advise and caution the jury as to the danger attendant upon their accepting uncorroborated testimony of an accomplice. While he pointed out a lack of any pronouncement by this court that a precautionary instruction must be given in all cases where an accomplice testifies, he did observe peripherally that it was doubtless safer for the trial court to give a precautionary instruction. He may have had in mind a similar statement by Judge Learned Hand, United States v. Becker, 2 Cir., 62 F.2d 1007, 1009. The complete principle applicable is, "If no request was made for a cautionary instruction in the trial court, nor objection made to failure to give the instruction, the trial court will not be reversed, unless the circumstances of the case are so unusual that the failure to caution the jury can be regarded as plain error." 2 Wright, Federal Practice and Procedure: Criminal § 490, p. 315 (1969).

Given the lack of a clear precedent in Wyoming requiring cautionary instructions on accomplice testimony, we hold the trial court did not violate a clear and unequivocal rule of law in not giving a cautionary instruction.

D. Failure to Find as a Matter of Law that Witnesses Were Accomplices/Co-conspirators or Submit the Question to the Jury

[146] Mr. Vlahos contends plain error occurred when the trial court failed to find as a matter of law that certain witnesses were accomplices and/or coconspirators or to submit the question to the jury. Mr. Vlahos points to no authority to support this contention. However, in Grable v. State, 601 P.2d 1001, 1003 (Wyo.1979), this Court said: "It is reversible error for the trial judge to remark that a witness is an accomplice of the person on trial since this carries the implication that the defendant's guilt has been determined even though that fact is peculiarly within the province of the jury." Under this principle, it would have been error for the trial court to find as a matter of law that any of the witnesses were Mr. Vlahos' accomplices or coconspirators.

[147] As for whether the trial court was required to submit the question to the jury, we are not aware of a clear and unequivocal rule requiring such submission, and Mr. Vla-hos cites us to none. Under these cireum-stances, we hold no plain error occurred.

E. Ineffective Assistance of Counsel

[¥48] Mr. Viahos argues defense counsel was ineffective in failing to request that the trial court instruct the jury on the law regarding accomplice/coconspirator testimony. Because the law does not require corroborating evidence of an accomplice's testimony or a coconspirator's in-court testimony, there is no basis for Mr. Vlahos' claim of ineffective assistance of counsel. While defense counsel certainly could have requested a cautionary instruction regarding the care with which accomplice testimony should be viewed, her failure to do so did not constitute "errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Dickeson v. State, 843 P.2d 606, 609 (Wyo.1992).

[T49] Affirmed.