author: GOLDEN, Justice.

text:
    2002 WY 92
    Shawn LEWIS, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 00-238.
    Supreme Court of Wyoming.
    June 20, 2002.

      Sylvia Lee Hack], State Public Defender; Donna «D. Domonkos, Appellate Counsel; Tina Kerin, Assistant Appellate Counsel; Diane Courselle, Director, Stephanie Fabian, Student Intern, Prisca Clark, Student Intern, and Paul R. Flick, Student Intern, of the Wyoming Defender Aid Program, Representing Appellant. Argument by Mr. Flick.
    Gay Woodhouse, Wyoming Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General, Representing Appel-lee. Argument by Mr. Pauling.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   GOLDEN, Justice.

[11] Following an aggravated assault and battery, police determined that Appellant Shawn J. Lewis had lied to them about the identity of the assailant. Lewis was arrested for accessory after the fact and interrogated several times while in custody without the advisement of rights mandated by Miranda v. Arizona, 384 U.S. 486, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). During interrogation, Lewis invented a fictitious name for the assailant and concocted a story for police who began investigating to try to locate a nonexistent suspect. The police's independent investigation soon indicated that Lewis had lied, and police secured a search warrant for his home that revealed independent evidence that Lewis had lied to them about the assailant's identity. Lewis voluntarily returned to speak with investigating police officers in the presence of his mother and minister. After receiving a Miranda advisement, Lewis waived his rights and confessed to lying in order to protect his uncle whom he had seen commit the aggravated assault and battery and who was staying in Lewis home. The trial court determined that this last statement was voluntary and denied Lewis' motion to suppress his statements. All of Lewis' statements were admitted against him at trial, and he was convicted.

[12] We hold that the failure to advise of Mirando required suppression of Lewis' statements made while in police custody. Those statements that followed his voluntary return and waiver of. Miranda rights were properly admitted at trial. Because all of Lewis' statements were admitted at trial, we examine, as we must, whether the constitutional error was harmless beyond a reasonable doubt. We conclude that it was and affirm Lewis' conviction.

ISSUES

[13] Lewis presents this issue for our review:

Did the trial court commit error by failing to suppress evidence obtained by police in violation of Shawn Lewis's Miranda rights?

The State rephrases the issue:

Whether the trial court committed reversible error in denying Appellant's motion to suppress evidence?

FACTS

[14] On August 22, 1999, a warrant issued for Lewis' arrest stating that he

did render assistant [sic] to an unknown suspect, with intent to hinder, delay or prevent the discovery, detection, apprehension, prosecution, detention, conviction or punishment of another for the commission of a crime, in violation of Wyoming Statute § 6-5-202(a)(b)(@). ...

[15] The affidavit of probable cause supporting this warrant and felony information stated that while investigating an aggravated assault committed upon Jordan Foster at 12:30 a.m. on August 22, 1999, police officer Deaton learned from Chris Weber that the assailant had arrived at and left the crime scene as a passenger in the back seat of an old maroon Ford Probe. Weber provided a physical description of the suspect. This vehicle was located by the police minutes later, and the officer took Weber to that location. Weber identified the two occupants as Shawn Lewis and Lewis' girlfriend, Shelly Lane, and stated that both had occupied the Probe at the time Foster was assaulted. The third person, the assailant, was not present. Another witness, Amanda Jameson, confirmed that Lane had been in the Probe at the time of the assault. Lane was questioned and denied knowing anything about the assault, denied being present during the assault, and stated that she had been with her boyfriend, Lewis, -at his residence watching movies. Lewis was interviewed by Sergeant Seeman and also denied being present during an assault, denied knowing about the assault or the identity of the assailant, and stated no third person had been in his car during the evening. Later, Officer Deaton and Detective Steve Rozier went to Lewis' residence and questioned Lewis again, and he again denied being present at the crime scene or knowing the identity of the suspect. The officers then interviewed Jameson again, and she identified Lane as an occupant and provided a physical description of the Probe's driver that matched Lewis' physical characteristics.

[T6] The officer's affidavit stated that, from this investigation, he had determined that Lewis was driving the Probe when it arrived at the crime seene, that Lewis drove the suspect away after the assault, and that Lewis refused to provide the identity or whereabouts of the suspect in the aggravated assault and further denied being present during the assault on Foster all in violation -of statute.

[17] Wyo. Stat. Ann. § 6-5-202 (Lexis-Nexis 2001), accessory after the fact, provides in pertinent part:

(a) A person is an accessory after the fact if, with intent to hinder, delay or prevent the discovery, detection, apprehension, prosecution, detention, conviction or punishment of another for the commission of a crime, he renders assistance to the person.
(b) An accessory after the fact commits:
(i) A felony punishable by imprisonment for not more than three (8) years, a fine of not more than three thousand dollars ($3,000.00), or both, if the crime is a felony and the person acting as an accessory is not a relative of the person committing the crime{.]

[18] Wyo. Stat. Ann. § 6-5-201 (Lexis-Nexis 2001) provides these relevant definitions: '

(ii) "Relative" means a grandparent, grandchild, mother, father, husband, wife, sister, brother or child; and
(iv) "Render assistance" means to:
(A) Harbor or conceal the person;
(B) Warn the person of impending discovery or apprehension, excluding an official warning given in an effort to bring the person into compliance with the law;
(C) Provide the person with money, transportation, weapon, disguise or other thing to be used in avoiding discovery or apprehension;
(D) By force, intimidation or deception, obstruct anyone in the performance of any act which might aid in the discovery, detection, apprehension, prosecution, conviction or punishment of the person; or
(E) Conceal, destroy or alter any physical evidence that might aid in the discovery, detection, apprehension, prosecution, conviction or punishment of the person.

[19] The probable cause affidavit does not seem to support finding that Lewis "rendered assistance" as defined by the statute; nevertheless, Lewis was taken into custody. Detective Rozier testified that Lewis was not advised of his Miranda rights at that time although Lewis was questioned several times that night. Rozier claimed that the Miranda advisement was unnecessary because he was engaging in plea negotiations with Lewis. During this custodial interrogation, Lewis told Rozier that the identity of the assailant was Terry Perry. Rozier began searching for Perry and, by the next day, began to suspect that Lewis had lied about the identity of the person who had assaulted Foster. Lewis had indicated that Perry had left a bloody shirt in the car after the assault, and that he could provide Perry's phone number and his photograph after he returned home. Rozier arrived at Lewis' house to retrieve the bloody shirt, Perry's phone number, and Perry's photograph. Lewis refused to allow Rozier to enter the residence, the bloody shirt was not in the car, Lewis was unable to provide Rozier with the phone number, and Lewis produced the top portion of a photograph stating that it was part of a collage. Based on these events, Rogier sought a search warrant and stated in his affidavit that he believed that information existed at Lewis' residence that identified the suspect and his whereabouts, residence, or place of employment and telephone number.

[{10] The search warrant issued, and Rozier conducted his search while Lewis was present. Rogier discovered the rest of the photograph that showed it was not part of a collage, but a photograph that included children, one of whom was Lewis at a much younger age. A man named David Wayne O'Brien, Lewis' uncle, was present at the house, and Rozier quickly determined that O'Brien was the suspected perpetrator of the assault upon Foster. Marijuana was also in plain view, and, after O'Brien claimed it, Rozier arrested him.

[111] The next day, August 24, Lewis arrived at police headquarters with his mother and their minister. Rozier advised him of his Miranda rights and told him that he faced felony charges. Lewis then confessed to lying about O'Brien's identity and to supplying Rozier with a false name and photograph to lead police away from O'Brien. On October 15, 1999, an amended felony information was filed charging that Lewis' conduct between the dates of August 22 and 24 violated Wyo. Stat. Ann. § 6-5-202, accessory after the fact, and the accompanying affidavit included all of the events just discussed.

[112] On December 10, 1999, Lewis filed a motion to suppress all statements made or given by him, and searches made from and after he was arrested on August 22, 1999. Lewis claimed that he had requested an attorney and was told that he could not speak to an appointed attorney and did not have any rights for the investigation into the identity of Foster's attacker.

[113] The trial court held a hearing, at which Rozier testified that Lewis had not been advised of his Miranda rights. Rozier stated that he offered Lewis a plea agreement whereby Lewis would be charged with a misdemeanor if he identified the assailant and that Lewis had then told him of Terry Perry. Lewis testified that Rozier did not discuss a plea agreement with him, but instead told him that he had no constitutional right to an attorney when he was being interrogated about a crime committed by someone else.

[T14] The trial court denied the motion to suppress, stating the following:

1. Defendant's statements to Sgt. Detective Rozier on August 24, 1999, after the Defendant appeared at the Gillette Police Department with his mother and Pastor Gordon Harper and initiated contact with Sgt. Detective Rozier, were clearly voluntary.
2. Defendant's statements made to Sgt. Detective Rozier on August 28, 1999, were made during contact with the Defendant when Detective Rozier's investigation was focusing upon the criminal activity of a person other than the Defendant, and at that time, the Defendant misled the Detective as to the cireumstances involving the crime committed by this other person, and as such, the Defendant engaged in a continuing course of conduct that was criminal. Upon review of all of the evidence presented, advisement of constitutional rights was not necessary, and further, Defendant's statements were - voluntarily made.
The Court does not entirely endorse all of Sgt. Detective Rogier's testimony but the Defendant's testimony, if not contrived, was conspicuously convenient and the Court finds Sgt. Detective Rozier's rendition of the facts to be most compelling and credible.

[115] Lewis was tried on one count of accessory after the fact. In its opening statement, the prosecution stated that, during their first contact, Rozier had told Lewis that Lewis had been identified as the driver of the vehicle which drove away the assailant after the assault and that failure to identify the assailant would cause his arrest for accessory after the fact. The prosecutor's opening statement clarified that the State considered all of Lewis' conduct between August 22 and August 24 as providing proof that Lewis had violated the accessory after the fact statute. -

[116] Lewis was convicted and sentenced to sixteen to thirty-six months, and this appeal of the denial of the motion to suppress followed.

DISCUSSION

[T17]) Before a suspect's statements given during custodial interrogation are admissible in evidence, certain advise-ments must be made. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The United States Supreme Court recently held that the advisements required by Miranda are not just prophylactic but arise out of the Constitution, and that a defendant's custodial interrogation statements must therefore be excluded unless the defendant was first notified of his Miranda rights. Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). Dickerson stated:

Accordingly, we laid down "concrete constitutional guidelines for law enforcement agencies and courts to follow." Those guidelines established that the admissibility in evidence of any statement given during custodial interrogation of a suspect would depend on whether the police provided the suspect with four warnings. These warnings (which have come to be known colloquially as "Miranda rights") are: a suspect "has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires."

Id. at 435, 120 S.Ct. at 2331 (citations omitted and emphasis added). Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made. Thus, the "fruit of the poisonous tree" doctrine does not apply to confessions obtained after an initial confession that was voluntary but not preceded by Miranda warnings. Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985); Roderick v. State, 858 P.2d 538, 545-47 (Wyo.1993). In Eistad, the Court held that "[a]) subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement." - Id. at 313, 105 S.Ct. 1285.

[T18] Although statements must be suppressed upon a showing of a Miranda violation, even when Miranda has been complied with, the Fifth and Fourteenth Amendments to the United States Constitution, as well as Wyo. Const. art. 1, §§ 6 and 11, require admissions and statements to be voluntary. Mitchell v. State, 982 P.2d 717, 721 (Wyo.1999); Doyle v. State, 954 P.2d 969, 971-72 (Wyo.1998); State v. Evans, 944 P.2d 1120, 1124 (Wyo.1997). Mitchell summarized the law:

To be voluntary, the defendant's statements must result from "free and deliberate choice rather than intimidation, coercion, or deception." Madrid v. State, 910 P.2d 1340, 1344 (Wyo.1996). Because we presume a defendant's statements to be involuntary, the burden rests on the State to show, by a preponderance of the evidence, that the defendant's statements were voluntary. Evans, 944 P.2d at 1126-27. Onee the State has met its burden and rebutted the presumption of involuntariness, the defendant may be required to present evidence demonstrating the involuntariness of his statements. Id. at 1126. If such statements resulted from coercion, then the statements are inadmissible at trial for any purpose because their validity is suspect. Id. at 1125.
Voluntariness is a legal question; thus, we review the ultimate issue, whether a defendant's statements were voluntary, de novo. Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 449-50, 88 L.Ed.2d 405 (1985); Doyle, 954 P.2d at 972; Simmers v. State, 943 P.2d 1189, 1194 (Wyo.1997); Evans, 944 P.2d at 1124. On review, however, we will not disturb the trial court's findings of fact unless clearly erroneous. Id. We look to the totality of the civreum-stances to determine if the defendant's statements were voluntary. Vigil v. State, 859 P.2d 659, 664 (Wyo.1993).

982 P.2d at T2l.

[119] Lewis contends that the "plea negotiations" were custodial interrogations conducted in violation of Miranda; but also argues that if this Court finds that they were plea negotiations, the statements remain inadmissible under W.R.Cr.P. ll(c)(6). The trial court did not find that the statements were admissible because they were plea negotiations, the State does not contend that W.R.Cr.P. 11(c)(6) would not apply, we have previously acknowledged its applicability, and we see no need to address the matter. Lewis addresses neither the voluntariness of his first statement nor the admissibility of the statement made to police in the presence of his mother and minister after receiving Miranda warnings. Lewis, instead, contends that, if his statement is suppressed in accordance with Miranda, then no crime was committed and his conviction must be reversed without remand for trial.

[T20] In its brief, the State does refer us to the holdings of Eistad and Roderick, but claims that the trial court could not suppress statements taken in violation of Miranda because those statements constituted the crime for which he is being prosecuted. The State tells us that the Fifth Amendment does not protect Lewis because he provided false information when he voluntarily spoke:

[Although] his initial statements to Rozier might be subject to suppression, to the extent they would be offered to prove criminal acts completed prior to his making the statements, but that they were not subject to suppression in a prosecution relating to the falsity of those statements.

[121] The State concedes that its argument is unsupported by authority because of the peculiar facts of this case, but claims that federal decisions have permitted admission of statements made without advisement of Miranda in prosecutions for perjury. The State refers us to a series of United States Supreme Court decisions discussing the applicability of the Fifth Amendment privilege to false tax return statements and witness testimony before a grand jury. United States v. Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969); United States v. Wong, 431 U.S. 174, 97 S.Ct. 1823, 52 L.Ed.2d 231 (1977); United States v. Apfelbaum, 445 U.S. 115, 100 S.Ct. 948, 68 L.Ed.2d 250 (1980). In all cases, the witness had committed perjury in violation of federal statute. Although the Court has not decided whether the failure to give Miranda warnings to a grand jury witness is a defense to a perjury charge based on the witness' false grand jury testimony, the Court itself noted that Miranda applied to "custodial interrogations," which "did not include questioning before the grand jury." 3 Wayne R. LaFave et al., Criminal Procedure § 8.10(d), at 201-02 (2nd ed.1999). La-Fave reports that the Court's general view is that:

The position of the subpoenaed witness could hardly be compared to that of the arrestee subjected to interrogation in the "hostile" and "isolated" setting of the police station. The appropriate analogy was to the questioning of a witness in an administrative or judicial hearing. As noted by Justice Frankfurter in United States v. Monia, [317 U.S. 424 (1948), 63 S.Ct. 409] a witness in that setting "if ... he desires the protection of the privilege, ... must claim it or he will not be considered to have been 'compelled' within the meaning of the Amendment."

Id. at 202.

[122] Regarding the tax form disclosure cases, the Court has stated:

Garner relies first on cases dealing with coerced confessions, eg., Miranda v. Arizona, 384 U.S. 486, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), where the Court has required the exclusion of incriminating statements unless there has been a knowing and intelligent waiver of the privilege regardless of whether the privilege has been claimed. Id., at 467-469, 475-477, 86 S.Ct. at 1624-1625, 1628-1629, 16 L.Ed.2d at 719-721, 724-725. Garner notes that it has not been shown that his failure to claim the privilege was such a waiver.
It is evident that these cases have little to do with disclosures on a tax return. The coerced-confession cases present the entirely different situation of custodial interrogation. See id., at 467, 86 S.Ct. at 1624, 16 L.Ed.2d at 719. It is presumed that without proper safeguards the circumstances of custodial interrogation deny an individual the ability freely to choose to remain silent. See ibid. At the same time, the inquiring government is acutely aware of the potentially incriminatory nature of the disclosures sought. Thus, any pressures inherent in custodial interrogation are compulsions to incriminate, not merely compulsions to make unprivileged disclosures. Because of the danger that custodial interrogation posed to the adversary system favored by the privilege, the Court in Miranda was impelled to adopt the extraordinary safeguard of excluding statements made without a knowing and intelligent waiver of the privilege. Id., at 467, 475-476, 86 S.Ct. at 1624, 1628-1629, 16 L.Ed.2d at 719, 724-725; see Michigan v. Mosley, 428 U.S. 96, 97, 96 S.Ct. 321, 324, 46 L.Ed.2d 313, 319 (1975); Schneckloth v. Bustamonte, 412 U.S. 218, 246-247, 93 S.Ct. 2041, 2057-2058, 36 L.Ed.2d 854, 873-874 (1978). Nothing in this case suggests the need for a similar presumption that a taxpayer makes disclosures on his return rather than claims the privilege because his will is overborne. In fact, a taxpayer, who can complete his return at leisure and with legal assistance, is even less subject to the psychological pressures at issue in Miranda than a witness who has been called to testify in judicial proceedings. Cf. United States v. Kordel, 397 U.S., at 9-10, 90 S.Ct. at 768-769, 25 L.Ed.2d at 8-10; Miranda, supra, 384 U.S., at 461, 86 S.Ct. at 1620, 16 L.Ed.2d at 716.

Garner v. United States, 424 U.S. 648, 657-58, 96 S.Ct. 1178, 1183-84, 47 L.Ed.2d 370 (1976).

[123] We find, therefore, that the State's analogy is inapposite, and we do not believe that this case falls in with those cases examining erime-by-words as an exception to a Mirando violation. 3 LaFave, supra, § 9.5(e), at 894. Courts have recognized that, for policy reasons, Miranda's scope of exclusion does not reach so far that it would prohibit admission of statements that constitute a new, separate and distinct erime from that for which the defendant was in custody when the Miranda violation cccurred. Id. Generally, however, the courts applying this exception have limited it to spontaneous, voluntary statements that constitute statutory violations prohibiting bribery or threats against the life of the president. Id.; United States v. Paskett, 950 F.2d 705, 707 (11th Cir.1992); United States v. Gordon, 974 F.2d 1110, 1115 (9th Cir.1992). Here, Lewis was arrested for lying about the assailant's identity. He was not read his constitutional rights as mandated by Miranda, and in the course of custodial interrogation, promises were made to him and he again lied about the assailant's identity. He was tried for one count of accessory after the fact for a "continuing course of criminal conduct" between August 22 and 24. The State does not advance any argument or provide authority that this exception's policy reasons would apply to Lewis' statements sufficiently for this Court to recognize it as spontaneous and voluntary.

[124] Further, LaFave's explanation that the "deterrent objective of the Miranda doe-trine need not be extended so far as to thwart the punishment of such crimes, which are sufficiently infrequent and unpredictable as to be unlikely objectives of a police deviation from Miranda," does not apply to Lewis' situation. 3 LaFave, supra, at 394. The following explains our view:

It is clear that the exclusionary rule in fifth amendment cases deters police misconduct, as it does in fourth amendment cases, and ensures the trustworthiness of evidence. See Michigan v. Tucker, 417 U.S. 433, 446-50, 94 S.Ct. 2357, 2364-67, 41 L.Ed.2d 182 (1974). However, application of the rule for fifth amendment violations has only an incidental effect on deterrence because that rationale is not the primary purpose for the rule in situations in which the fifth amendment is implicated. Thus, in many contexts, exclusion of evidence collected in violation of a defendant's fifth amendment rights is required to implement those rights. It has been noted that, while one principal purpose of the judicially created fourth amendment exelusionary rule is to deter official misconduct, "[the Fifth Amendment, in contrast, is by its terms an exclusionary rule...." United States v. Kurzer, 534 F.2d 511, 516 (2d Cir.1976). Accord United States v. Tantalo, 680 F.2d 903, 908 (2d Cir.1982); United States v. Cella, 568 F.2d 1266, 1285 (9th Cir.1977); In re Grand Jury Proceedings, 497 F.Supp. 979, 983 (E.D.Pa.1980). See also United States v. Henderson, 406 F.Supp. 417, 421 n. 4 (D.Del.1975) (the judicially created fourth amendment exclusionary rule and the constitutionally mandated exclusion of evidence obtained in violation of fifth amendment rights rest upon different grounds, and are not subject to the same analysis).
Legal commentators have recognized this distinction between the fourth and fifth amendment exelusionary rules. One author has observed that, because "the primary purpose of the Fifth Amendment privilege is to avoid forcing an individual to contribute to the imposition of criminal penalties upon himself, not to protect his privacy," Comment, Standards for Exclusion in Immunity Cases after Kastigar and Zicarell, 82 Yale L.J. 171, 177 (1972), it is inadequate merely to apply the deterrence rationale of the fourth amendment exclusionary cases to the fifth amendment:
Thus, unlike the Fourth Amendment, the Fifth Amendment is directly concerned with the introduction of tainted evidence at trial; it is in fact the introduction of such evidence that constitutes the primary violation of the Amendment. Even if the exclusion of evidence derived from a coerced confession is unlikely to have a deterrent effect on the police, its introduction will still represent an infringement on the individual's privilege against self-incrimination.
Id. at 178 (footnote omitted). Another writer states that "[the privilege against self-inerimination thus simply is the exelusion of such evidence: without this exelusion there is no privilege." Zupancic, The Privilege - Against - Self-Incrimination, 1981 Ariz. St. L.J. 1, 19. "This point cannot be over-emphasized. The substantive sanctions against the police who violate the privilege simply are not adequate. This is not a question of deterring police from future misconduct." Id. at 19 n. 5.

People v. Briggs, 709 P.2d 911, 919 (Colo.1985).

[125] Under these facts, the Miranda violation requires suppression of all of Lewis' statements that constituted the crime. However, Lewis returned to police and, in front of his mother and minister, received a Miranda warning, waived those rights and then fully confessed that, while in police custody, he lied to police by identifying the fictional "Terry Perry" as the assailant. According to El-stad, this confession is admissible in evidence despite the Miranda violation if voluntary and Lewis does not contend that it was not voluntary.

[T26] Thus, the remaining question is whether the admission at trial of those statements that should have been suppressed was harmless error. The admission of testimony in violation of Miranda constitutes a violation of Lewis' due process rights. See Miranda, 384 U.S. at 444, 86 S.Ct. at 1612; Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-85, 68 LEd.2d 378 (1981); see also Dickerson, 530 U.S. at 443-44, 120 S.Ct. at 2336. However, the finding of constitutional error does not automatically necessitate reversal. The erroneous admission of statements taken in violation of a defendant's Fifth Amendment rights is subject to harmless error analysis. Neder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827, 1838, 144 LEd.2d 35 (1999). Whether a constitutional error was harmless is reviewed de novo. In undertaking our de novo review of the prejudicial effect of the erroneous admission of testimony, the question is whether the erroneously admitted evidence had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 1722-28, 128 L.Ed.2d 358 (1998) (quoting and adopting standard in Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946)). A reviewing court does not examine whether there was sufficient evidence to support the conviction in the absence of the constitutional error. Rather, ordinarily, we must ask whether the verdict was surely unattributable to the error. Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 2081, 124 L.Ed.2d 182 (1998) ("The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error."); Kotteakos, 328 U.S. at 765, 66 S.Ct. at 1248. If, after conducting such an inquiry, we conclude that the error had a "substantial and injurious effect or influence," we must set aside the jury's findings. The State bears the burden that an error is harmless under this standard. Seeley v. State, 959 P.2d 170, 178 (Wyo.1998) (citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967)).

[127] Without Lewis' statements that should have been suppressed, the police had the evidence. obtained from their independent investigation and from the search of Lewig home, including the actual assailant, as evidence that Lewis had "rendered assistance" in violation of the statute. Lewis' post-Miranda, voluntary statement confirmed that the evidence showed that he had provided false statements to the police with the intent to hinder, delay, or obstruct their investigation and render assistance to O'Brien. The improper admission of Lewis' unwarned statements did not have a substantial and injurious effect or influence on the jury, and we find the error to have been harmless.

[T28] The conviction is affirmed.

      . Refusal to speak to police is not a crime. In Stephens v. State, 734 P.2d 555, 557 (Wyo.1987), this Court reversed an accessory after the fact conviction to burglary upon similar facts.

      . Because Rozier testified that he had the district attorney's permission to negotiate a plea bargain, had the trial court determined plea negotiations were properly occurring, then the statements would have been inadmissible because the "accused's statement relating to the failed plea is inadmissible on the crucial issue of guilt or innocence." Harvey v. State, 835 P.2d 1074, 1135 (Wyo.1992) (Golden, J., dissenting). Because the trial court made no such finding, we confine our discussion to Miranda analysis.

      . Lewis' motion to suppress raised only the Miranda violation and did not raise voluntariness or illegal arrest issues, and these are not addressed on appeal.

      . The State does not contend in this appeal that this ground supports the trial court's decision. We are unaware of any law that Miranda is unnecessary for custodial interrogation because police are investigating another crime; however, that reasoning does not apply to Fifth, Amendment Miranda warning violations, but does apply to Sixth Amendment rights to counsel. See Texas v. Cobb, 532 U.S. 162, 121 S.Ct. 1335, 149 L.Ed.2d 321 (2001).


source: Caselaw Access Project

author: LEHMAN, Chief Justice.

license: Public Domain

text:
    2002 WY 94
    Frank GOGLIO, Cora Goglio, Kent Harker, Fred Cobb, Richard Asay, Dorothy Asay, Alfred Boschetto, Robert Barngrover, Jean Barngrover, Robert Carmine, Warren Webb, Gerald Kittleson, and Roy Holloway, Appellants (Plaintiffs), v. STAR VALLEY RANCH ASSOCIATION, a Wyoming mutual benefit, non-profit corporation, Appellee (Defendant). Frank Goglio, Cora Goglio, Kent Harker, Fred Cobb, Richard Asay, Dorothy Asay, Alfred Boschetto, Robert Barngrover, Jean Barngrover, Robert Carmine, Warren Webb, Gerald Kittleson, and Roy Holloway, Appellants (Plaintiffs), v. Star Valley Ranch Association, a Wyoming mutual benefit, non-profit corporation, Appellee (Defendant).
    Nos. 00-256, 00-257.
    Supreme Court of Wyoming."
    June 21, 2002.

      Robert J. Logan of Law Offices of Robert J. Logan, San Jose, CA, Representing Appellants. Argument by Mr. Logan.
    Sean P. Durrant of Palmerlee & Durrant LLC, Buffalo, WY, Representing Appellee. Argument by Mr. Durrant.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   LEHMAN, Chief Justice.

[11] Appellant homeowners Goglio et al. (homeowners) are residential lot owners in Star Valley Ranch, a recreational subdivision in Lincoln County, and members of the Star Valley Ranch Association. The consolidated appeal they present to this court is comprised of two cases. In case number 00-256, appellant homeowners sought a declaratory judgment that the culinary water use fee imposed upon them by appellee Star Valley Ranch Association (Association), a non-profit corporation, was a violation of the recorded Declaration of Covenants, Conditions and Restrictions (DCCRs) that govern the relationship between these parties. The district court granted summary judgment for the Association determining that the DCCRs, articles of incorporation, by-laws, and applicable Wyoming statutes authorize the imposition of the fee in question. Having herein determined that the governing documents do not authorize the imposition of such a fee absent an affirmative vote by two-thirds of the members of the Association, we reverse the judgment of the district court.

[12] In case no. 00-257, appellant homeowners seek reversal of the district court's order purportedly granting W.R.CP. 11 sanctions to appellants. While we agree that the district court's order is unusual, we construe it essentially as a denial of requested sanctions and, as such, not an abuse of discretion and thus affirm.

[13] Affirmed in part, reversed in part, and remanded.

ISSUES

[T4] Case number 00-256 presents the following issues for review:

1. Whether Star Valley Ranch Association, a Wyoming mutual benefit non-profit corporation (the "Association") should have been barred by res judicata or collateral estoppel from levying the culinary water use fee.
2. Whether Appellee corporation had the authority to impose a culinary water use fee upon those Appellant lot owners whose homes were hooked into and using the corporation's water system.

Case number 00-257 presents these issues:

1. Whether the district court abused its discretion in issuing the W.R.C.P. 11 sanetion order.
2. Whether Appellant Logan's due process rights were violated when sanctions were ordered against him.

FACTS AND PROCEDURAL HISTORY

[15] In the early 1970s, the developer Leisure Valley began selling lots in Star Valley Ranch, a rural recreational subdivision in Lincoln County. Star Valley Ranch consists of 2,050 residential lots plus amenities such as swimming pools, golf courses, tennis courts, hiking trails, a bar, and a restaurant. The DCCRs were adopted to make the lots more attractive to potential buyers and to maintain property values. Leisure Valley organized the Association as a nonprofit corporation for the benefit of the lot owners to enforce the DCCRs and to own, manage, and maintain the common area, which consists of the property acquired by the Association for the common use and enjoyment of the members. All lot owners in Star Valley Ranch are automatically members of the Association.

[16] On October 4, 1995, the district court in the third judicial district issued an order resolving a case captioned Goglio et al. v. Star Valley Ranch Ass'n, case number 9367 (Goglio I). Goglio I involved. the imposition of a "homeowner's fee" by the Association on some of its members. The court determined that the imposition of the "homeowner's fee" by the Association was unenforceable as beyond the authority granted to it by the recorded DCCRs. The court reached its conclusion by finding that the fee at issue was an assessment in excess of the maximum annual assessment allowed under the DCCRs and that the Association had not obtained the requisite membership approval before the imposition of the fee. The Association did not appeal the district court's order in Goglio I.

[T7] On June 28, 1997, the Association held a special election seeking membership approval for a special assessment to fund, among other things, the acquisition of water lines and the replacement of water lines pursuant to an agreement with the developer, Leisure Valley. The membership did not approve the special assessment. On November 14, 1998, the Association held a second special election seeking membership approval for a special assessment, the purpose of which included funds for the acquisition of water lines and the replacement of water lines. Again, the membership did not approve the special assessment.

[T8] Thereafter,, on. April 29, 1999, the Association Board adopted Resolution No. 2 which levied a $180 annual fee on all property owners who used the culinary water system. The Resolution was sent to homeowners with an attached cover letter dated May 3, 1999. The letter read that the board had been studying the issue for some time and "(upon completion of this thorough study, which included favorable opinions from two different law firms, the use fees were enacted and are effective immediately." The letter further read that funds collected "will be used to help provide and maintain these services." The Resolution provided that homeowners who did not pay the culinary water fee would be disconnected from the system.

[19] Subsequently, some of the appellant homeowners sent letters to the Association Board of Directors geeking information regarding the culinary water use fee. Generally, they requested information on the Board's authority for imposition of the fee, asked how this fee differed from the fee found unen-foreeable in Goglio I, asked for more specificity regarding the purpose and use of the fee, and requested information regarding the legal opinions referred to in the Board's letter of May 8, 1999. According to their affidavits and attachments, many of the homeowners never received a response from the Board, others received responses which declined to discuss the legal opinions given to the Board or to further answer the homeowners' queries.

[110] On June 30, 1999, the homeowners filed a petition for declaratory judgment seeking a determination by the district court that the imposition of the culinary water use fee was beyond the authority granted to the Association Board under the DCCRs or barred under the doctrine of res judicata pursuant to the holding of Goglio I. On August 24, 1999, the Association moved to dismiss the petition alleging that Goglio I was wrongly decided because it relied in part on a repealed statute. It is the allegations in this motion that gave rise to the district court's sanction order of July 19, 2000, 'and form the grounds for case number 00-257 in this consolidated appeal.

[T11] On September 21, 1999, appellants moved for summary judgment. On June 22, 2000, after supplemental briefing by the parties, the district court treated appellee's motion to dismiss as a converted motion for summary judgment pursuant to W.R.C.P. 12(c) and granted summary judgment to the Association and denied summary judgment to the homeowners. The court decided that the culinary water use fee was different from the fee at issue in Goglio I and thus not barred by the doctrine of res judicata. It also concluded that the DCCRs, articles of incorporation, and Wyoming statutes authorized the Association Board to impose the culinary water use fee. This timely appeal followed.

STANDARD OF REVIEW

[112] When this court reviews a grant of summary judgment entered in response to a petition for declaratory judgment, we invoke our usual standard for review of summary judgments. Fontaine v. Board of County Comm'rs, 4 P.3d 890, 892 (Wyo.2000); Board of County Comm'rs v. Geringer, 941 P.2d 742, 745 (Wyo.1997); Kunard v. Enron Oil & Gas Co., 869 P.2d 182, 134 (Wyo.1994). The summary judgment can be sustained only when no genuine issues of material fact are present and the moving party is entitled to judgment as a matter of law. W.R.C.P. 56(c), Fontaine, 4 P.3d at 892; Kirby v. NMC/Continue Care, 998 P.2d 951, 952 (Wyo.1999); Selby v. Conquistador Apartments, Ltd., 990 P.2d 491, 494 (Wyo.1999); Roberts v. Klinkosh, 986 P.2d 153, 155 (Wyo.1999). In this instance, there is no contention that any genuine issue of material fact exists, and our concern is strictly with the application of the law. The interpretation and construction of contracts is a matter of law for the courts. Reed v. Miles Land and Livestock Co., 2001 WY 16, § 10; 18 P.8d 1161, 110 (Wyo.2001); Mathis v. Wendling, 962 P.2d 160, 168-64 (Wyo.1998). We review a grant of summary judgment deciding a question of law de novo and afford no deference to the district court's ruling. Hirschfield v. Board of County Comm'rs, 944 P.2d 1189, 1141 (Wyo.1997).

DISCUSSION

Case number 00-256

[113] The district court determined that- the Board's actions were not barred by the doctrines of res judicata or collateral estoppel premised upon its earlier holding in Goglio I. The district court reasoned that the culinary water use fee at issue in the instant case is a "use" fee and was thus different from the homeowner's "service" fee litigated in Goglio I. Accordingly, it declined to apply the principles of res judicata to the current controversy. However, we think that the district court's decision letter from Goglio I more accurately describes the holding and the seope of the issues at controversy in the earlier case:

UNDERLYING ISSUE
The controversy concerning the homeowners fee is a controversy concerning the power and authority of the Homeowners Association; and the controversy proposes a central question: Can the Association establish, collect or otherwise enforce a fee or charge against a member of the associa'tion without the member's express or implied consent and agreement?
, The answer is obvious: No, the Associa-t1on cannot collect or otherwise enforce a fee or charge against a member of the association, unless the member, expressly or impliedly, consents and agrees to the charge. >

[T 14] Appellants correctly point out that the Association Board relies on no new authority beyond that argued or capable of being argued in the earlier litigation for its current contention that it has the authority to impose the culinary water use fee. We thoroughly articulated our jurisprudence on the subject of res "judicata in CLS v. CLJ, 693 P.2d 774, 775-76 (Wyo.1985):

The doctrine of res judicata is that a judgment, decided upon the merits by a court. with jurisdiction, is conclusive of that cause of action and facts or issues litigated, both to the parties and their privies in any other action, in the same or different court of concurrent jurisdiction on the same issues. 46 Am.Jur.2d Judgments § 394.
"Res judicata is the term applied to the rule that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies; and, as to them, it constitutes an absolute bar to a subsequent action involving the same claim, demand, or cause of action." Barrett v. Town of Guernsey, Wyo., 652 P.2d 395, 398 (1982).

Res judicata is a rule of umversal Jaw which pervades every well-regulated system of jurisprudence. Rubeling v. Rubeling, Wyo., 406 P.2d 283 (1965). A final, valid determination on the merits of a case is conclusive on the parties and thosé matters adjudicated. Roush v. Roush, Wyo., 589 P.2d 841 (1979).

In cases involving identical parties, capacity of parties, cause of actions, and subject matter, a decision in the first case bars relief in the second case. United Nuclear Corp. v. General Atomic Co., 98 N.M. 633, 651 P.2d 1277 (1982). The criteria involved in res judicata are: (1) identity in parties; (2) identity in subject matter; (3) the issues are the same and relate to the subject matter; (4) the capacities of the persons are identical in reference to both the subject matter and the issues between them. Fox v. 7L Bar Ranch Co., Mont., 198 Mont. 201, 645 P.2d 929 (1982). See, Kumberg v. Kumberg, 232 Kan. 692, 659 P.2d 828 (1988). A policy reason for res judicata is that each litigant shall be limited to one opportunity to try 'his case «on the merits. Santos v. State, Dept. of Transp., Kauai Division, 64 Haw. 648, 646 P.2d 962 (1982).

"The principle of res Judlcata fosters reliance on judicial action, and tends to eliminate vexation and expense to the parties, wasted use of judicial machinery and the possibility of inconsistent results." Developments in the Law, Res Judicata, 65 Harvard L.Rev. 820 (1952). See also, Delgue v. Curutchet, Wyo., 677 P.2d 208 (1984).

We think the district court's reasonmg was erroneous because it decided the issue of res judicata simply by determining that the home service fee at issue in Goglio I and the culinary water use fee in the instant case were "obviously different." It reached its result by concluding that the original fee was a charge to provide security, trash removal, dust control, snow removal, road and water service maintenance, while the culinary water use fee is a charge for use of the water system owned by the corporation. However, we think this foregoing arialysis puts undue focus on the charges themselves, their labels, and their purported uses, rather than more fittingly focusing on the subject of the previous litigation and the seope of the district court's holding in Goglio I as compared to the subject and the issues Wh1ch compmse the current litigation.

[T15] At its core, Gogo I decided the power and authority of the Association to collect and enforce assessments and fees upon its members. The decision was grounded upon a judicial construction of the parties' contract, ie. the DCCRs and other governing documents, as well as applicable statutes. This construction of the parties' contract was not appealed. Accordingly, it should be given res judicata effect in the instant controversy. "An adjudication as to the construction or validity of an instrument is res judicata when there is an issue in another action between the same parties, although the immediate subject matter of the two actions is different." 46 Am.Jur.2d Judgments § 552 (1994). Moreover, water maintenance fees were explicitly at issue in the previous case and again are the subject matter currently on appeal. We see no legal distinction between a "homeowner's service fee" which includes a charge for water maintenance and a "culinary water use fee" to be used for the maintenance of the water system, sufficient to override the application of res judicata in the instant case:

[116] In addition, we disagree with the Association's argument that Goglio I was wrongly decided and, more importantly, reject its contention that error in the first judgment would necessarily preclude our p-plication of res judicata to the current case. This court has long held that "[rles judicata is not, as a general rule, defeated by error in the initial judgment." See Price v. Bonnifield, 2 Wyo. 80, 86 (1879), Cermak v. Great West Cas. Co., 2 P.3d 1047, 1054 (Wyo.2000). Nevertheless, because the parties before us continue to be bound to one another by a contractual relationship, in an attempt to forestall further litigation, we will herein address on the merits their arguments regarding the imposition of assessments and fees and render a dispositive construction of the applicable controlling documents and statutes.

[T17] The central issue before us is the scope of power and authority granted to the Association to levy assessments and fees from the members of Star Valley Ranch and the source(s) of that authority. Stated alternatively, to what imposition of assessments and fees have the members given their express consent. The parties essentially disagree with regard to the construction and interaction of pertinent language found in the DCCRs, Association by-laws, articles of incorporation, . and the Wyoming Non-Profit Corporation Act codified in Wyoming Statutes §§ 17-19-101 et seq. We think the following commentary accurately articulates the general functions and interdependence of the various documents:

Homeowners associations serve three primary functions: levying and collecting assessments; managing and maintaining common property for the benefit of residents; and enforcing covenants that govern developments. They derive authority to carry out these functions from several documents, including the declaration of covenants, conditions, and restrictions (CC & Rs), the association's bylaws and articles of incorporation, and the deeds to the property within a development.
The CC&Rs for the subdivision are of primary importance in the establishment of a homeowners association. The declaration generally establishes the covenants by which all owners within the development agree to be bound and the respective obligations of the owners and the association. Developers record the declaration in the land records before any lots are sold. The covenants within the declaration run with the land and bind subsequent property owners. The covenants are reciprocally enforceable agreements among homeowners that regulate anything from the architectural design and use of structures to the number of pets or guests allowed. "Neighborhood uniformity is preserved" by enforcing the covenants.
Another legal document essential to an association is its bylaws, which establish procedures for the internal government and operation of the association. The bylaws are not always recorded, but may be incorporated by reference in the declaration. Whereas declarations have been likened to an association's constitution, bylaws can be seen as the statutes that detail the day-to-day operations of the association.
After they are formed, but before the title transfer of the common property to the homeowners association, an association usually incorporates. "Incorporation not only provides greater certainty to the association as the fee title holder but also brings to bear the entire body of statutory and case law developed in the jurisdiction's corporate law." In conjunction with the declaration and bylaws, the articles of incorporation establish the general boundaries of the association, including the governing structure, financing, assessment mechanisms, voting and control procedures, and the specification of ownership.

Casey J. Little, Riss v. Angel: Washington Remodels the Framework for Interpretng Restrictive Covenamts, 78 Wash. L.Rev. 483, 4837-88 (1998). See also Wayne S. Hyatt, Condominiums and Home Owner Associations: A Guide to the Development Process (McGraw-Hill, Inc.1985).

[118] In accordance with the fore going discussion, we continue to hold that the DCCRs generally determine the power and authority granted to the Star Valley Association by its members. As we said in Arychuk et al. v. Star Valley Ass'n when construing the applicable documents:

Covenants such as the Declaration are contractual in nature, and they are to be interpreted, and we believe enforced, according to principles of contract law. McLain v. Anderson, 933 P.2d 468, 474 (Wyo.1997); Anderson v. Bommer, 926 P.2d 959, 961 (Wyo.1996) McHuron v. Grand Teton Lodge Co., 899 P.2d 38, 40 (Wyo.1995). As we said in Sinclair Oil Corp. v. Columbia Cas. Co., 682 P.2d 975, 979 (Wyo.1984):
We will not invalidate a contract entered into freely by competent parties on the basis of public policy unless that policy is well settled, unambiguous and not in conflict with another public policy equally or more compelling.
In most cireumstances, the Arychuk group could expect that their contractual rights under the Declaration would be honored and enforced.

Arychuk, 997 P.2d at 479.

[119] In Arychuk, it is clear that this court deliberately decided the issue before it on a very narrow basis through reference to Wyo. Stat. Ann. §17-19-802(a)(i). The case involved a settlement between the Developer and the Association over the conveyance of the culinary water system. We determined that, in that limited instance, any conflict between the general powers authorized to the Association. under: the Act and the DCCRs would be resolved in favor of the strong public policy which favors settlement of litigation. Id. at 479. Appellee again requests that we find within the Wyoming Non Profit Corporation Act a general grant of authority to the Association explicitly limited by the DCCRs. However, we find no public policy basis for overriding the parties' express agreement and instead will look to the DCCRs, by-laws, and articles of incorporation to determine the parties' rights and obligations with regard to the imposition of assessments and fees.

[120] In doing so, we conclude that there is no real conflict among the various documents. Much of the language relied upon by the Association, similar to § 17-19-302(a)(xiv) of the Act, grants general powers of assessment to the Association. However, when addressing more specifically the manner in which those assessments must be made and the maximum dollar value of the assessments, the following language found within the DCCBRs is duplicated in the Association's by-laws, and the by-laws are in turn referenced in the applicable article of incorporation addressing assessments.

. [T21] The pertinent article is set out below:

ARTICLE VI
COVENANTS FOR MAINTENANCE ASSESSMENTS
Section 1. Creation of the Lien and Personal - Obligation - of - Assessments.
Each Owner or purchaser of any Lot or parcel shall be deemed to covenant and agree to pay to the Association (1) annual assessments or charges, and (2) special assessments for capital improvements, such assessments to be fixed, established, and collected from time to time as herein-after provided. The annual and special assessments, together with such interest thereon and costs of eollection thereof as hereinafter provided, shall be a charge on the land and shall be a continuing lier upon the property against which such assessment is made when the Association causes to be recorded with the County Recorder of the County of Lincoln a notice of assessment stating the amount of such assessment and such other charges as hereinbelow provided ... -
Section 2. Purpose of Assessments. The assessments levied by the Association shall be used exclusively for the purpose of promoting the recreation, health, safety, and welfare of the Members of the Association, and in particular for the improvement and maintenance of the services and facilities devoted to this purpose and related to the use and enjoyment of the Common Area. -

Section 8. - Basis and Maximum of Annual Assessments. Until January 1, 1987, the maximum annual assessment shall be Two Hundred Fifty Dollars ($250) per Lot or parcel.

(a) Thereafter, the maximum annual assessment may be increased effective January 1 of each year by the Board of Directors, without a vote of the membership, in conformance with the percentage increase, if any, of the Consumer Price Index, United States City Average for All Urban Consumers, as published by the United States Department of Labor for the immediately preceding month of July over such Index for the previous immediately preceding month of July.
(b) Anything contained herein to the contrary notwithstanding, ithe maximum annual assessment may be increased for the next succeeding year above that established by the Consumer Price Index formula by a vote of the members taken within the last quarter of each such year, for each succeeding year, provided that any such change shall have the assent of two-thirds (2/3) of the votes of the Members, present in person or by proxy, at a meeting duly called for this purpose, written notice of which shall be sent to all Members not less than thirty (80) days, nor more than sixty (60) days, in advance of the meeting, setting forth the purpose of the meeting.
(c) After consideration of current maintenance costs and future needs of the Association, the Board of Directors shall fix the annual assessment at an amount not in excess of the maximum established for the subject year.
Section 4. Special Assessments for Capital Improvements. In addition to the annual assessments authorized above, the Association may levy, in any assessment year, a special assessment applicable to that year only for the purpose of defraying, in whole or in part, the costs of any construction or reconstruction, unexpected repair or replacement of a described capital improvement upon the Common Area, including the necessary fixtures and personal property related thereto; provided that any such assessment shall have the assent of two-thirds (2/8) of the votes of the Members present in person or by proxy at a meeting duly called for this purpose, written notice of which shall be sent to all Members not less than thirty (30) days nor more than sixty (60) days in advance of the meeting, setting forth the purpose of the meeting.
Section 6. Uniform Rate of Assessment. Both annual and special assessments must be fixed at a uniform rate for all Lots or parcels and may be collected on a monthly or other convenient basis.

"Common Area" is defined in Article I of the DCCRs as "all real property acquired by the Association for the common use and enjoyment of the Members of the Association, including any structures or other improvements thereon, and any real property used for ingress or egress to the Property which has been dedicated to, but is not being maintained by, the County of Lineoln." The Developer conveyed the culinary water system to the Association, and appellee admitted in its answer that it is indeed "Common Area." Thus, there is no dispute upon that point.

[T23] In our analysis of the DCCRs, we will apply the following established rules of construction:

Because they are contractual in nature, restrictive covenants are to be interpreted in accordance with the principles of contract law. Anderson v. Bommer, 926 P.2d 959 (Wyo.1996). We construe plain terms of a covenant, if they are sufficiently clear, without reference to any attendant facts and circumstances or extrinsic evidence. American Holidays, Inc. v. Foxtail Owners Ass'n, 821 P.2d 577, 579 (Wyo.1991); Klutznick v. Thulin, 814 P.2d 1267, 1270 (Wyo.1991); Knadler v. Adams, 661 P.2d 1052, 1058 (Wyo.1983).

McLain v. Anderson, 983 P2d 468, 474 (Wyo.1997).

[124] Our review of the DCCRs indicates that they are unambiguous as a matter of law. Further, we think a fair reading of the plain language of the instrument demonstrates an assessment procedure whereby the members have expressly covenanted to pay a fixed annual assessment for the maintenance of the "Common Area" which shall be a lien upon the property. Additionally, the members have covenanted to pay an annual assessment above the fixed formula upon approval by % of the membership. Lastly, the members have expressly consented to the levy of a "Special Assessment for Capital Improvements" again upon an affirmative vote of % of the members.

[125] The affidavit of Roger D. Cox, Chairman of the Board of Directors of the Association, indicated that the culinary water use fee was enacted in order to repair and maintain the current water system as well as expand the system in order to provide sufficient water to all members of the Star Valley Ranch. Judging by this description of the purposes underlying the enactment of the culinary water use fee, one can only conclude that it is an assessment and most aptly labeled as a "Special Assessment for Capital Improvement." Nor would it be unreasonable to find, based upon its earlier conduct of seeking membership approval for the imposition of such a fee, that the Board had originally drawn this same conclusion. Implicit in the DCCR language that requires approval of % of the members of the Association for the imposition of a special assessment is the proposition that a special assessment cannot be levied without the requisite approval.

[126] The district court reached its conclusion that the appellant homeowners had expressly consented to the culinary water service fee by first interpreting the language of Section 1: "Each Owner or purchaser of any Lot or parcel shall be deemed to covenant and agree to pay to the Association (1) <amnual assessments or charges, and (2) special assessments for capital improvements" as "annual assessments and charges and (2) ..." and then by finding that the water service fee was a charge that, by applying the foregoing interpretation, was expressly consented to by the members. In making its interpretation, the district court relied upon three Wyoming cases, including Smith v. City of Casper, 419 P.2d 704, 706 (Wyo.1966) in which this court said, "in the multitudinous cases which have discussed interpretation of the word 'or' as 'and' and vice versa, it seems to be the general rule that the interchange can be made only when it is necessary to harmonize the provisions of a statute, give effect to all its provisions, save it from unconstitutionality, or to effectuate the obvious intent of the legislature." The district court applied this rule of interpretation to the DCCRs concluding it was necessary to harmonize the provisions of the covenants, as well as to effectuate their intent. We disagree. Generally speaking, when the terms of a contract are unambiguous, our search for the intent of the parties is confined to the language contained within the "four corners" of an integrated contract. Our standard of interpretation for contracts declares that the words used to memorialize the intent of the parties are given the plain meaning that a reasonable person, in the position of the parties, would understand them to mean. Doctors' Co. v. Insurance Corp. of America, 864 P.2d 1018, 1023 (Wyo.1993); Wangler v. Federer, 714 P.2d 1209, 1218 (Wyo.1986).

[127] Again, upon‘reviéwing the DCCRs as a whole, we can but only conclude that "or" means "or." When viewed in context it appears the terms "assessments or charges" are simply used interchangeably as synonyms; moreover, this drafting technique is continued throughout the document. The DCCBRs unambiguously set forth a system of assessments to maintain the Common Area which include only two types of levy (1) annual assessments or charges, and (2) special assessments for capital improvements. Though sympathetic to the Association Board's desire to effectuate its purpose to maintain the Common Area for the welfare and benefit of its members, courts may not rewrite contracts under the guise of interpretation. Amoco Production Co. v. E.M. Nominee Partnership Co., 2 P.3d 584, 540 (Wyo.2000). This court would be remiss if we allowed the district court's interpretation to stand in the face of the clear language of the parties' written agreement.

[128] Nor can we approve the district court's reasoning as applied to the instant case that:

The most significant difference between annual assessments and other charges imposed by the Association is choice. Each member of the Association has a right to choose whether or not to exercise their easement of enjoyment by using the water system owned by the Association. If their choice is to use the water system, they will be charged a culinary water use fee. If their choice is not to use the system, no fee will be charged. The annual assessment is entirely different. The membership has no choice. The annual assessment is mandatory[.]

The above analysis disregards Article V of the DCCRs entitled "Property Rights" which provides in Section 1 that "Every Owner shall have a right and easement of enjoyment in and to the Common Area and such easement shall be appurtenant to the respective Lot or parcel for which each owner holds such interest and shall pass with the title to every assessed Lot or parcel, subject to the following provisions...." According to this language, the members have a property right in and to the Common Area, such as the culinary water system, subject in subsection (d) to the right of the Association to suspend the member's right to use of the common facilities for any period during which any assessment against his Lot or parcel remains due and unpaid.

[129] While the district court's analysis may be appropriate to true optional services provided by the Association, such as the garbage disposal fee also established by Resolution No. 2, it is not applicable to use of the Common Area. The owners' property rights in the Common Area, the system of assessments the very purpose of which is to maintain the Common Area, and the applicable assessment imposition and enforcement mechanisms, are all established and governed by controlling language found throughout the DCCRs primarily within Articles V and VI. There is simply no further "choice" available to either party on these subjects; rather they are bound by the choice made to enter into their express written contract.

[130] Lastly, the Association contends that the homeowners expressly ac-quieseed to the imposition of a water use fee by their acknowledgments and signatures on various HUD property reports issued pursuant to the Interstate Land Sales Full Disclosure Act, 15 U.S.C. § 1700 et seq. Appellee alleges that each of these reports contained a "Water" section which explained the Star Valley Ranch culinary water system and the charges that would be imposed upon hookup. Apparently, some of the appellants' HUD reports contained the language, "the annual cost for use of water is estimated at $15; this charge will be determined by the property owners' association," while the other appellants' HUD reports stated, "the use fees will be determined by the property owner's association." We assume the HUD property reports, as represented by appellee, do not affect our foregoing analysis of the parties' contract because the HUD reports were not incorporated by reference in any of the controlling contractual documents. The Fifth Circuit has efficiently articulated the Act thusly: |

The underlying purpose of the Interstate Land Sales Full Disclogure Act (the Act) is to insure that a buyer, prior to purchasing certain kinds of real estate, is informed of facts which will enable him to make an informed decision about purchasing the property. Paguin v. Four Seasons of Tenmessee, Inc., 519 F.2d 1105, 1109 (5th Cir.1975). To accomplish this purpose the Act imposes certain requirements on developers who use any means or instruments of interstate commerce to sell or lease lots in a "subdivision." In particular, 15 U.S.C.A. § 17083(a)(1) makes it unlawful for such a developer "to sell or lease any lot in any subdivision unless ... a printed property report ... is furnished to the purchaser in advance of the signing of any contract or agreement for sale or lease by the purchaser." If the requirements of § 1703(a)(1) are not met, § 1708(b) gives the purchaser a right of rescission. Section 1709(b)(1) gives the purchaser the right to sue a developer who violates § 1703(a) and § 1719 gives the United States district courts jurisdiction over such suits. An - action - brought - under § 1709(b)(1) to enforce the right created by § 1708(b) must be brought within two years after the violation occurs. 15 U.S.C.A. § 1711; McCaffrey v. Diversified Land Co., 564 F.2d 1241 (9th Cir.1977); Jacobsen v. Woodmoor Corp., 400 F.Supp. 1 (W.D.Mo.1975).

Law v. Royal Palm Beach Colony, Inc., 578 F.2d 98, 99-100 (5th Cir.1978) (footnotes omitted).

[131] We think it is clear that the homeowners signed the HUD reports as ac-knowledgement of their receipt to evidence the Developer's compliance with the requirements of the Act. Furthermore, our research discloses few cases in which HUD property reports have been analyzed apart from the requirements of the Act and in the context of the parties' contractual relationship. The courts in cases which integrated the HUD reports into the parties' contract specifically found that the contract on its face made explicit reference to the HUD reports. See Correa v. Pecos Valley Development Corp., 126 Ariz. 601, 617 P.2d 767 (App.1980); Marriott v. Harris, 285 Va. 199, 368 S.E.2d 225 (1988); High Knob Associates v. Douglas, 249 Va. 478, 457 S.E.2d 349 (1995). No one in the instant case has alleged such facts, nor do we find any reference to the HUD reports in either the DCCRs or by-laws. The DCCRs, by-laws, and article of incorporation comprise the parties' integrated agreement. Moreover, viewing the HUD reports in light of the provisions of the subsequent written contract, rather than unequivocally supporting appellee's view that the homeowners were on notice of the Asso-clation's intent to charge a water use fee and acquiesced to such a charge, one in the homeowners' position could reasonably have concluded that the system of assessments outlined in the DCCRs and the Association's by-laws incorporated the charge. In any event, we find the HUD property reports are extrinsic to the parties' subsequent express integrated contract and consequently reject the appellee's argument. "Under the parol evidence rule, neither oral testimony nor pri- or written agreements are admissible to explain or vary the terms of a fully integrated written contract." - Resource Technology Corp. v. Fisher Scientific Co., 924 P.2d 972, 976 (Wyo.1996) (applying Gemini Equipment Co. v. Pennsy Supply, Inc., 407 Pa.Super. 404, 595 A.2d 1211, 1215 (1991)).

[132] Ultimately, we conclude that the district court erred in its interpretation of the parties' contract including the specific applicable provisions of the DCCRs. We find that the culinary water use fee has been levied to maintain the "Common Area" of the Star Valley Ranch, {.e. the culinary water use system; as such it is an assessment in excess of the maximum allowable under the applicable covenants. Consequently, we hold that the Association cannot impose the culinary water use fee unless % of its members approve such an action. We therefore reverse the case, vacate the district court's entry of summary judgment for appellee Association, order summary judgment be entered in favor of appellant homeowners Goglio et al., and authorize any other proceedings not inconsistent with this opinion.

Case No. 00-257

[183] In this case, appellant homeowners claim the district court erred by 1) failing to impose a harsher sanction upon the Association's attorney, David Palmerlee, and 2) imposing a sanction upon their own attorney, Robert Logan, when no motion for sanctions had been made against him, nor had the court on its own motion entered an order to show cause. The issues in the case arise from allegations made in the Association's motion to dismiss. The motion alleged judicial error in Goglio I premised upon attorney misconduct, i.e. preparing the order for summary judgment with the knowledge that the district court's decision was based upon a repealed statute and failing to disclose the repealed statute to the court. See fn. 3. Our review of the record indicates that Mr. Lo-

gan complied with the requirements of W.R.CP. 11(c)(1)(A) by requesting that Mr. Palmerlee withdraw the Motion to Dismiss prior to seeking the judicial sanction.

[134] After correspondence between the attorneys and advance service of the proposed Rule 11 Motion on Mr. Palmerlee (thus satisfying the "safe harbor" provision of the Rule) on September 22, 1999, Mr. Logan filed the motion requesting sanctions. It alleged that Mr. Palmerlee violated Rule 11 by misrepresenting to the court that he had conducted a reasonable inquiry into the allegations of judicial error and professional misconduct prior to signing the Motion to Dismiss; that the contentions in the Motion did not have evidentiary or legal support; and that the Motion was presented for the purposes of harassment and increasing the cost of litigation. The Homeowners' Rule 11 Motion asked for the attorney's fees generated to bring the motion and necessary to deter repetition of such conduct. The hearing on the sanctions motion was reset, then vacated, and ultimately was not held.

[1 35) On July 19, 2000, the district court entered an order captioned "Order for Sane-tions." It read:

In this case Counsel for Defendant accused Counsel for Plaintiff of "acting improperly" in previous litigation between the parties, le., in the so-called Goglio I litigation. - Counsel for Plaintiff seeks sanctions against opposing Counsel.

Therefore, the following sanctions are entered:

1. Counsel for Defendant shall apologize to Counsel for Plaintiff for accusing him of improper and unethical conduct.
2. In the future, if either Counsel accuses the other of improper conduct without having an unimpeachable factual foundation for the accusation, the accuser shall be cited for contempt.[]

In a letter dated August 3, 2000, Mr. Palmer-lee sent the following "apology" to Mr. Logan, "Dear Bob: Incident to the Court's Order of July 12, 2000, [sic] please accept my sincere apologies for whatever allegations you found to be offensive and unfounded. Yours truly, David F. Palmerlee." It is from the court's order that the Homeowners appeal.

[136] Initially, we note that only the homeowners, Goglio et al., have filed a notice of appeal with this court. We recently addressed our jurisdiction to hear an appeal from the imposition of sanctions when only the client, and not also the sanctioned attorney, has appealed in Welch v. Hat Six Homes, 2002 WY 81, 47 P.3d 199 (Wyo.2002). Within that opinion, we announced the rule that, when the award of sanctions is against the attorney, clients do not possess the requi-gite interest, pecuniary or otherwise, to support standing. Welch, 112 (citing Estate of Bishop v. Bechtel Power Corp., 905 F.2d 1272, 1276 (9th Cir.1990)). In those cireum-stances, it is the attorney's interest that is at stake, and it is the attorney who should bring the appeal in his own name. Welch, 18. When the attorney fails to file a notice of appeal in his name, W.R.A.P. 2.07 and 1.03 have not been satisfied, and this court lacks jurisdiction to hear and decide the issue.

[137] However, in Welch, we also specifically recognized the narrow exception to the foregoing rule that applies when it is objectively clear from the court's order that it only applies to the attorney and not the client. We stated that designation of such an order provides sufficient evidence, by implication, of the attorney's intention to take an appeal from the order of sanctions. Welch, T 14 (quoting Laurino v. Tate, 220 F.3d 1213, 1218 (10th Cir.2000)). Judging by the notice of appeal in this action, it is unclear that Mr. Logan intended to take an appeal from the order of sanctions as it applied to him. It is captioned only in the clients' names, and much of the argument in the appellants' brief addresses the injury to the clients from the district court's denial of the requested sance-tions. Therefore, it seems apparent that he is not a party to this appeal: His clients do not have standing to appeal the imposition of sanctions as they apply to him. Especially so when, in doing so, they assert a violation of their attorney's due process rights. Thus, the appellants' second issue "whether Appellant Logan's due process rights were violated" by the imposition of sanctions against him is not before this court, and we have no jurisdiction to decide such an issue.

[138] However, the clients certainly have standing and are proper parties to appeal the district court's grant of sance-tions against opposing counsel which did not include the relief requested, including a grant of attorney's fees generated defending the Motion to Dismiss which they allege was sanctionable under W.R.C.P. 11. We apply an abuse of discretion standard in reviewing an award of sanctions. Bender v. Phillips, 8 P.3d 1074, 1077 (Wyo.2000);, Rodgers v. Rodgers, 627 P.2d 1881, 1883 (Wyo.1981). A court does not abuse its discretion unless it acts in a manner which exceeds the bounds of reason under the cireumstances. »In determining whether there has been an abuse of discretion, the ultimate issue is whether or not the court could reasonably conclude as it did. An abuse of discretion has been said to mean an error of law committed by the court under the cireumstances. Rodgers at 1888.

[139] Appellants contend, in regard to the district court's order, that Mr. Palmerlee apologized to Mr. Logan and that: "The apology for accusing counsel of 'acting improperly' does not address the misrepresentations to the court or the filing of frivolous claims resulting in delay and increased cost of litigation. The sanctions should have addressed the conduct that gave rise to the abuse of process and increased costs, not to make Logan feel better. Logan was not the party harmed by the delay and expense of defending the frivolous allegations." While we find some merit in the clients' argument, nonetheless Rule 11(c)(2) specifically provides:

A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (A) and (B), the sanction may consist of, or include, directives of a nonmonetary nature ...."

Additionally, this court has specifically encouraged district courts to consider the imposition of nonmonetary sanctions in Caldwell v. Cummings, 2001 WY 106, 114, 33 P.3d 1138, T14 (Wyo.2001). We cannot say that the district court abused its discretion in awarding a nonmonetary sanction, i.e. the admonition that attorney Palmerlee apologize to attorney Logan. However, it should also be needless for this court to remind all members of the Bench and Bar that accusations of professional misconduct are not to be lightly made nor lightly taken.

CONCLUSION

[140] Finding the controlling covenants and other documents to be unambiguous in requiring % membership approval before the imposition of the culinary water use fee in question, we reverse and remand case no. 00-256. Having determined that the district court did not abuse its discretion in imposing a nonmonetary sanction upon counsel, we affirm case no. 00-257.

[141] Affirmed in part, reversed and remanded in part with instructions..

      . Portions of this agreement were the subject of previous litigation ultimately decided by this court in Arychuk v. Star Valley Ass'n, 997 P.2d 472 (Wyo.2000). The Arychuk decision was pending throughout the course of the proceedings in the instant case and was issued by this _ court on February 28, 2000.

      . The resolution also imposed a $30 annual fee on those members who wished to use the Association garbage depot system. This fee is not herein at issue.

      . Appellees contend that the Goglio I district court relied upon a repealed statute in reaching its decision that the Association did not have the authority to impose a homeowner's service fee on its members. Wyo. Stat. Ann. § 17-6-103, repealed effective January 1, 1993, and replaced by Wyo. Stat. Ann. § 17-19-302. We disagree with the proposition that these statutes were the "fundamental underpinning of the Summary Judgment" in Goglio I. Rather, the court's construction of the DCCRs, bylaws, and articles of incorporation was the fundamental underpinning of the earlier case.

      4. This court has once before addressed application of the Association's by-laws in Skane v. Star Valley Ranch Ass'n, 826 P.2d 266 (Wyo.1992).

      . The Association relies on Wyo. Stat. Ann. § 17-19-302(a)(xiv) (LexisNexis 2001) (emphasis added) which provides:
      (a) Unless its articles of incorporation provide otherwise, every corporation has perpetual duration and succession in its corporate name and has the same powers as an individual to do all things necessary or convenient to carry out its affairs including, without limitation, power:

      (xiv) To impose dues, assessments, admission and transfer fees upon its members[.]
      We think this statute must be read in pari mate-ria with statute § 17-19-613:
      Member's liability for dues, assessments and fees.
      A member may become liable to the corporation for dues, assessments or fees as a condition for remaining a member. An article, bylaw or corporate resolution authorizing dues, assessments or fees is not, by itself, sufficient to impose liability without the consent or acquiescence of the member.
      We believe in the context of a homeowners association it is clear that the general powers of the non-profit corporation may be limited, not only by the articles of incorporation, as recognized in the statute itself, but, because of the specialized character of the entity, also by the DCCRs and bylaws which comprise the core agreement between the horneowneérs association and its members. ' to

      . Article V Section 1(b) outlines the right of the Association to charge reasonable admission and "other fees for the use of any recreational facility situated upon the Common Area." Judging by this language and the DCCRs as a whole this subsection is not applicable to the culinary water use fee.

      . We note with some exasperation that appellee expends at least six pages of its appellate brief discussing and arguing the language and effect of the aforementioned HUD property reports; it specifically directs this court in its brief to the record volume containing such reports, yet inexplicably fails to designate that volume of the record to this court for review. Nor did we independently find those reports located elsewhere in the voluminous designated record. Certainly, we could have acquired the applicable volume, but conclude that the HUD reports themselves are not indispensable to our resolution of the issue.

      . This court found a financial statement appended to a HUD property report to be a memorandum of the parties' oral agreement to pay a sales commission sufficient to satisfy the statute of frauds in Richardson v. Schaub, 796 P.2d 1304, 1310 (Wyo.1990) (Urbigkit, C.J. dissenting).

      . We do not intend to imply by this holding that developers may not be bound by the representations they make in HUD property reports.

      . Though the issue has not been raised, it is questionable whether this order complies with W.R.C.P. 11(c)(3).

      . Presumably, Mr. Logan found the allegation that he had committed professional misconduct by deliberately and consciously misleading the court to be offensive and unfounded.

      . To the extent that paragraph 2 of the district court's order is a "sanction" upon Mr. Logan, rather than merely a warning or the court's attempt to control conduct within its courtroom, it is clear that under W.R.C.P. 11(c)(1)(B) sanctions cannot be imposed upon the court's own motion without a prior "order to show cause" served upon the attorney.


text:
    2002 WY 95
    Van EWING, on behalf of himself and all other similarly-situated shareholders of Hladky Construction, Inc., a Wyoming corporation, Appellant (Plaintiff), v. HLADKY CONSTRUCTION, INC., a Wyoming corporation and Mike Hladky, majority shareholder of Hladky Construction, Inc., Appellees (Defendants).
    No. 01-131.
    Supreme Court of Wyoming.
    June 25, 2002.
    James L. Edwards of Stevens, Edwards & Hallock, P.C., Gillette, Wyoming, Representing Appellant.
    Paul J. Drew of Drew & Carlson, P.C., Gillette, Wyoming, Representing Appellee.
    Before LEHMAN, C.J., and GOLDEN, HILL, KITE, and VOIGT, JJ.
   GOLDEN, Justice.

[T1] While Appellant Van Ewing (Ewing) was employed by Appellee Hladky Construction, Inc., (company), he received one thousand shares of stock in the company from Appellee Mike Hladky (Hladky). Upon Ewing's resignation, Hladky demanded the return of the stock, and Ewing refused, insisting he was entitled to compensation for the return of the stock. Litigation ensued, and, after a bench trial, the trial court determined that the stock was a conditional gift with a reversionary interest and must be returned without compensation. In his appeal, Ewing contends that the evidentiary record does not support the determination that a condition was attached at the time that the gift was made, and no evidence was presented that the stock must be returned without compensation. This appeal followed.

[12] We affirm.

ISSUES

[13] Ewing presents this issue for our review:

Whether the decision of the district court to require the stock owned by Appellant to be returned without compensation is supported by the evidence and is correct as a matter of law? ‘

Company and Hladky rephrase the issue as:

Whether the judgment entered in favor of the appellees is supported by the evidence.

FACTS

[1 4] Ewing filed a shareholder derivative action, and Hladky counterelaimed asserting that Ewing was not a shareholder because the stock transfer was a gift conditioned on Ewing's continued employment. An unreported bench trial was held to determine Ewing's status. The parties have submitted a statement of the evidence approved by the district court in accordance with W.R.A.P. 3.03.

[15] Ewing testified that he began his employment with the company in 1991 and submitted a letter of voluntary resignation in 1998. During his employment with the company he held various positions, including foreman, foreman's superintendent, supervisor, and, at the time of his resignation from the company, as project manager for the company. Additionally, Ewing was a vice-president of the corporation and had held that position for about three years.

[16] In 1998 and 1994, Ewing received cash bonuses from the company and paid federal income tax. On March 28, 1995, he received a certificate for one thousand shares of the company's corporate stock from Hlad-ky. The shares were reported as a gift to avoid income tax liability, and Ewing did not pay income tax on the value of the stock and never received any dividends or additional stock. Both Ewing and Hladky met with the company's accountant, Garland Marso, before the stock was given to Ewing to discuss transfer of the shares, and Marso suggested that the shares be gifted to Ewing to avoid tax consequences for Ewing. Marso also advised Ewing and Hladky to contact an attorney to prepare a buy-sell agreement of the stock and for the purpose of providing life insurance to fund such a purchase; however, no such written agreement was ever prepared. After the stock was transferred as a gift, the company purchased life insurance on each man in order to fund the purchase of each other's shares in the event of disability or death. Hladky prepared and delivered the stock certificate to Ewing stating, "now you can't quit." After Ewing resigned, he and Hladky met at a restaurant and Hladky demanded the return of the stock. Ewing stated that he' would return the stock upon receipt of compensation.

[17] Hladky testified that he is the owner of all shares of the company and had made a gift of a thousand shares of stock to Ewing in March of 1995. His 1995 gift tax return reflected the transfer of a thousand shares of stock from himself to Van Ewing and his spouse. The gift's purpose was intended to provide Ewing a portion of stock that he would not later have to purchase if something happened to Hladky. Hladky admitted that Ewing had earned the stock but claimed that the gift carried a condition. Hladky testified that it was always understood between himself and Ewing that the continued ownership of Ewing's shares in the company was conditioned on Ewing's continued employment. At the time that he issued and delivered the share certificate to Ewing, Hladky advised Ewing, "now you can't quit," because Hladky intended that the gift of shares would terminate in the event Ewing quit his employment with the company.

[18] Marso testified that as the company's accountant he prepared the gift tax return and met with both parties on several occasions regarding a buy-sell agreement for the shares of the company. He also advised both men that if the shares were transferred as a gift rather than a bonus, Ewing would not have to pay income tax for receiving them.

[T9] In its decision letter, the trial court stated:

The parties disagree as to the reason the stock certificate was given to the Plaintiff. The Plaintiff contends it was a bonus for work he performed for the Defendant. The Defendant argues that it was pursuant to a corporate arrangement; in the event of Mike Hladky's death, Plaintiff would be able to purchase the remainder or other 90 percent of the business.

The trial court determined that both parties agreed that the stock transfer was a gift and not a bonus, and ruled that the law recognized that a gift may have a reversionary interest if delivered with the manifested intention that the donee acquire an ownership that terminates on the occurrence or nonoccurrence of some special event or condition. The trial court found that the gift was delivered with the intent that it should be returned to Hladky in the event that Ewing's employment terminated. The trial court entered judgment that the stock be set over to Hladky without compensation to Ewing, and this appeal followed.

DISCUSSION

[110] In this appeal, Ewing does not dispute the trial court's ruling as a matter of law that Hladky could make this gift with the condition that: ownership revert to him upon the termination of Ewing's employment. Ewing instead contends that the evidence does not support the trial court's conclusion that Hladky expressly manifested an intent that the stock was a conditional gift that was to be returned without compensation upon employment termination.

Standard of Review

[111] Essentially, Ewing's contentions challenge the trial court's determination of Hladky's intent at the time that the stock was transferred. "Whether an oral contract exists, the terms and conditions of the oral contract and the intent of the parties are generally questions of fact." Roussalis v. Wyoming Medical Center, Inc., 4 P.3d 209, 250 (Wyo.2000) (quoting Wilder v. Cody Country Chamber of Commerce, 868 P.2d 211, 218 (Wyo.1994)). This Court will not set aside a trial court's factual findings unless the findings are clearly erroneous or contrary to the great weight of the evidence. Stansbury v. Heiduck, 961 P.2d 977, 978 (Wyo.1998); Sowerwine v. Nielson, 671 P.2d 295, 301 (Wyo.1988); When reviewing the record, we keep in mind the following principles:

The judge who presided at the trial heard and saw the witnesses. He is in the best position to determine questions of credibility and weigh and judge the evidence, both expert and non-expert. Thus, on appeal, it is a firmly established and oft-stated rule that we must accept the evidence of the successful party as true, leave out of consideration entirely the evidence of the unsuccessful party in conflict therewith, and give to the evidence of the successful party every favorable inference that may fairly and reasonably be drawn from it.

Id.

[112] In its decision letter, the district court found:

On one point, the parties were not mistaken and that is they both agreed that the stock certificate was a "gift." Therefore, the only question that remains is whether the gift was completed or whether the gift had some reversionary interest. Here again the Court must turn to the testimony of the parties to determine the intent therein. The testimonies of Mike Hladky and the accountant were quite clear as was the IRS Form 709. The stock was a gift. It was not a bonus. The gift had a rever-sionary interest-to be returned to the donor upon the happening of an event-Le. termination. The Court notes that the Section 4552 of the Restatement of the Law Second, Property 2d, donative transfers, states in Section 31.2 that:
"The owner of personal property may make a gift thereof to another person (the donee) in which the donor retains a reversionary interest by delivering the personal property to the donee ... with the manifested intention that the donee acquire an ownership that terminates . on the occurrence or non-occurrence of some special event or condition."

Ewing contends that the trial court had no evidence that the conditions found were express and clearly understood by Ewing at the time that the stock was delivered. Hlad-ky contends that the district court's discussion indicates it had sufficient evidence that he expressly conditioned the gift upon continued employment, and if employment terminated, then the stock was to be returned without compensation.

[3] [113] Because it is supported by the record, we uphold the trial court's factual determination that the parties had agreed to a gift and not a bonus. The trial court's conclusion that the law permits conditional gifts is supported by the law, as is Ewing's assertion that Hladky must have expressed his condition at the time that the gift was made. We have recognized that a valid inter vivos gift requires the presence of three elements: (1) a present intention to make an immediate gift; (2) actual or constructive delivery of the gift that divests the donor of dominion and control; and (8) acceptance of the gift. Rose v. Rose, $49 P.2d 1321, 1324 (Wyo.1998). . North Carolina has examined the law of conditional gifts and stated:

A person has thé right to give away his or her property as he or she chooses and "'may limit a gift to a particular purpose, and render it so conditioned and dependent upon an expected state of facts that, failing that state of facts, the gift should fail with it'" Charlotte Park & Recreation Comm'n v. Barringer, 242 N.C. 311, 321, 88 S.E.2d 114, 128 (1955) (quoting Grossman v. Greenstein, 161 Md. 71, 155 A. 190 (1931)), cert. denied, Leeper v. Charlotte Park & Recreation Comm'n, 850 U.S. 983, 76 S.Ct. 469, 100 L.Ed. 851 (1956). An unconditional inter vivos gift, however, once given is irrevocable. See Atkins v. Parker, 7 N.C.App. 446, 450-51, 173 S.E.2d 38, 41 (1970); see also Thomas [v. Houston], 181 N.C. [91] at 94, 106 S.E. [466] at 468 [(1921)] (a gift inter vivos is absolute and takes effect at the time delivery is completed, provided there are no conditions attached). The intent of the donor to condition the gift must be measured at the time the gift is made, as any "undisclosed intention is immaterial in the absence of mistake, fraud, and the like, and the law imputes to a person an intention corresponding to the reasonable meaning of his words and acts. It judges of his intention by his outward expressions and excludes all questions in regard to his unexpressed intention." Howell v. Smith, 258 N.C. 150, 153, 128 S.E.2d 144, 146 (1962) (intent in context of a contract).

Courts v. Annie Penn Memorial Hosp., Inc., 111 N.C.App. 134, 431 S.E.2d 864, 866 (1998). In Courts, the donor made a gift of stock to a hospital, and later sued for its return contending that the gift had been made on the condition that the hospital name its charitable foundation after her grandfather and the hospital had selected another name. The appellate court agreed that the relevant time period to examine her donative intent was at the time that the stock transfer was completed and, after examining the entire record, the court affirmed the trial decision that at the time that she made her donation, the donor placed no conditions upon her gift. Id. at 867-68.

[114] In contrast, the record before us shows that the trial court exathined Hladky's intent at the time that he transferred the stock and found that he had placed conditions then. Although at trial, Ewing contended that the stock was in lieu of a bonus and unconditional, Hladky claimed that the purpose was to effectuate a corporate arrangement, go that in the event of his death, Ewing would be able to purchase the remainder or. other ninety percent of the business. Each party testified, accordingly, and the trial court was charged with credibility determinations. The trial court's finding that Hladky had gifted the stock and placed conditions when it was made is supported by this record, and, under our proper standard of review, we must affirm the trial court's decision.