author: JACKSON, Presiding Judge:

text:
    2003 UT App 51
    STATE of Utah, in the interest of B.M.S., a person under eighteen years of age. B.J.B., Appellant, v. H.J., Appellee.
    No. 20020138-CA.
    Court of Appeals of Utah.
    Feb. 21, 2003.

      Lamar J. Winward, St. George, for Appellant.
    Mark L. Shurtleff and Sandra Langley, Asst. Attys. Gen., Salt Lake City, for Amicus Curiae Office of Recovery Services.
    Before JACKSON, P.J., BILLINGS, Associate P.J., and BENCH, J.
   OPINION

JACKSON, Presiding Judge:

¶ 1 B.J.B. appeals the juvenile court’s denial of his motion to enter default judgment and petition to terminate his parental rights. We affirm.

BACKGROUND

¶2 On or about June 18, 1996, B.J.B. executed an Affidavit for Voluntary Declaration of Paternity. Based on his affidavit, the State filed a complaint for paternity. The juvenile court entered a judgment of paternity on October 27,1999, and set child support at $342 per month on March 16, 2000. On May 16, 2000, B.J.B. filed a motion to stay collection of child support, to set aside judgment of paternity, and to dismiss. The juvenile court denied each of his motions on December 21, 2000, and B.J.B. did not appeal.

¶ 3 In February 2001, B.J.B. filed a petition for termination of parental rights in the Fifth District Juvenile Court seeking to relinquish his parental rights. In September 2001, the natural mother, H.J., filed an unsigned response without revealing her whereabouts. When she did not appear at trial, the juvenile court issued an order requiring her to sign her response and provide her address and telephone number. The order provided that the juvenile court would strike her response and enter a default judgment in favor of B.J.B. if she did not comply with its order. She did not comply with the order.

¶ 4 Nevertheless, the juvenile court denied B.J.B.’s motion for default judgment and dismissed his petition to terminate parental rights on the grounds that he sought relief under the wrong statute. Specifically, the juvenile court determined he was not entitled to terminate his parental rights under section 78-3a-404 of the Termination of Parental Rights Act (the Act), and termination was not in the child’s best interests. See Utah Code Ann. § 78-3a-404 (2002). Both parties have stipulated that B.J.B. is not the biological father of the child. B.J.B. now challenges the juvenile court’s interpretation of section 78-3a-404 and its refusal to terminate his parental rights.

ISSUES AND STANDARDS OF REVIEW

¶ 5 First, B.J.B. argues the juvenile court improperly interpreted section 78-3a-404 of the Act. See Utah Code Ann. § 78-3a-404 (2002). A question of statutory interpretation is a legal conclusion to be reviewed for correctness. See State v. McKinnon, 2002 UT App 214,¶ 3, 51 P.3d 729.

¶ 6 Second, B.J.B. argues the juvenile court erred in refusing to terminate his parental rights. To terminate parental rights, a juvenile court must determine it is in the child’s best interests. See In re A.G., 2001 UT App 87,¶ 7, 27 P.3d 562. “ We will disturb the juvenile court’s decision not to terminate parental rights only if its findings are clearly erroneous.’ ” In re C.K., 2000 UT App 11,¶ 17, 996 P.2d 1059 (citation omitted). Moreover, we defer to the juvenile court in its findings of fact because of its advantageous position in assessing credibility. See id. at ¶¶ 14-15.

ANALYSIS

I. Interpretation of Utah Code Ann. § 78-3a-404 (2002)

¶ 7 B.J.B. argues the juvenile court erred when it refused to terminate his parental rights pursuant to section 78-3a-404 of the Act. B.J.B. points to language in section 78-3a-404 that allows “any interested party” to file a petition to terminate parental rights. The juvenile court acknowledged the “any interested party” language, but posited that the phrase does not mean every interested party. Instead, the juvenile court concluded, it means “any interested party except the. parent whose actions give rise to the termination.”

¶ 8 “[Wjhen interpreting statutes, our primary goal is to evince ‘the true intent and purpose of the Legislature.’ ” State v. McKinnon, 2002 UT App 214,¶ 6, 51 P.3d 729 (citation omitted). In doing so, we first look to the plain language of the statute. See id. “Moreover, ‘[w]e do not look beyond the statute’s plain language unless it is ambiguous.’ ” Id. (alteration in original) (citation omitted).

¶ 9 The Act provides the judicial processes to be applied when a parent seeks to relinquish his own parental rights and when third parties seek to terminate the rights of one or both parents. The Act, therefore, is divided into two distinct processes. This is the clear legislative intent of the Act as summarized in section 78-3a-402(l), which states, “[tjhis part provides a judicial process for voluntary and involuntary severance of the parent-child relationship, designed to safeguard the rights and interests of all parties concerned and promote their welfare and that of the state.”

¶ 10 The one process, section 78-3a-414, “Voluntary relinquishment — irrevocable,” describes what must be done when a parent seeks to relinquish his own parental rights. When the process is initiated by a third party, however, involuntary termination proceedings apply and are governed by the remaining sections of the Act. Thus, each petition to the court to sever the parent-child relationship must fall into one of these two processes. Either a parent seeks to relinquish his own parental rights or the action is brought by a third party.

¶ 11 When a parent seeks to voluntarily relinquish his parental rights, he must use the statute specifically intended for such an action. To do otherwise would defeat the legislative intent contained in subsection 78-3a-414(5), which states: “The requirements and processes described in Sections 78-3a-402 through 78-3a-410 do not apply to a voluntary relinquishment or consent for termination of parental rights. The court need only find that the relinquishment or termination is in the child’s best interest.”

¶ 12 B.J.B. sought to convince the juvenile court that he could apply section 78-3a-404(l) to his attempt to voluntarily relinquish his parental rights. By clear and unambiguous statutory language, however, the requirements and processes of sections 78-3a-402 through 78-3a-410, of which 78-3a-404 is part, do not apply when the matter pending before the court involves a parent who wishes to voluntarily relinquish his parental rights.

¶ 13 Moreover, allowing a parent to terminate his own parental rights under section 78-3a-404 would produce an absurd result. It would allow a parent to use his own misconduct, such as abandonment and neglect, to further alleviate his parental obligations. Commodum ex injuria sua nemo habere debet. Further, it would render the presumption in section 78-3a-414, “Voluntary relinquishment — irrevocable,” meaningless. Section 78-3a-414 requires a parent seeking to relinquish his parental rights to overcome the presumption that termination for the sole purpose of avoiding financial responsibility is not in the best interests of the child. Conversely, termination of parental rights by a third party requires only a showing that termination of parental rights is in the child’s best interests, without any presumption. See Utah Code Ann. § 78-3a-402. Therefore, parents seeking voluntary relinquishment of parental rights would have an incentive to pursue termination under section 78-3a-404 rather than bearing the heavier burden of rebutting the presumption contained in section 78-3a — 414. “[W]e seek ‘to render all parts [of the statute] relevant and meaningful’ ” and to “ ‘avoid interpretations that will render portions of a statute superfluous or inoperative.’ ” State v. Tooele County, 2002 UT 8,¶ 10, 44 P.3d 680 (citations omitted).

¶ 14 Accordingly, we hold that the juvenile court was correct in concluding that B.J.B. may not terminate his parental rights under section 78-3a-404. First, the plain language of subsection 78-3a-414(5) expressly prohibits use of this section when a parent seeks to voluntarily relinquish his parental rights. Second, a contrary interpretation would lead to an absurd result because it would allow parents to profit from their own wrongdoing. Third, such an interpretation would render the presumption contained in section 78-3a-414 meaningless.

II. Refusal to Terminate Parental Rights

¶ 15 In any event, the juvenile court properly refused to terminate B.J.B.’s parental rights because it determined that termination was not in the child’s best interests. Utah law requires juvenile courts to make two distinct findings before terminating the parent-child relationship. See In re C.K., 2000 UT App 11,¶ 18, 996 P.2d 1059. First, the court must find a specific ground for termination, as required by section 78-3a-407. See id. Second, the court must find that termination is in the child’s best interests. See id. The petitioner bears “the burden of establishing both of these elements by clear and convincing evidence.” In re R.A.J., 1999 UT App 329,¶ 7, 991 P.2d 1118.

¶ 16 Section 78-3a-407 allows a juvenile court to terminate parental rights if it finds that the parent has abandoned or neglected the child. B.J.B.’s actions fall into the categories of abandonment and neglect since he has not made any efforts to visit, communicate, or support his child other than those forced by the State. See In re M.E.C., 942 P.2d 955, 960 (Utah Ct.App.1997) (upholding termination of parental rights for neglect where parent made only token efforts to communicate with and support child); In re B.O., 927 P.2d 202, 203-04 (Utah Ct.App.1996) (upholding termination of parental rights for abandonment where parent visited child twice in eleven years, called or mailed a card every four to six months, and was at least two years in arrears on child support payments). Thus, if § 78-3a-407 applied, B.J.B. would have satisfied the first prong of the test.

¶ 17 The second prong requires B.J.B. to show that termination of parental rights is in the child’s best interests. B.J.B. argues that it would be in the child’s best interests to sever the “artificial tie” that binds them together because he does not have any contact ■with the child, and he is not the child’s biological father.

¶ 18 Utah courts have declined to terminate parental rights, even after finding parental misconduct, where it is not in the child’s best interests. See, e.g., In re R.A.J., 1999 UT App 329 at ¶¶ 14-15, 991 P.2d 1118 (upholding denial of foster parents’ petition to terminate parental rights); In re E.R., 2001 UT App 66,¶¶ 12-13, 21 P.3d 680 (affirming juvenile court’s refusal to terminate parental rights even though grounds existed to terminate because best interests of children would not be served by leaving children without support).

¶ 19 In re E.R. is instructive. In that case, a guardian ad litem filed a petition to terminate parental rights. See id. at ¶4. The juvenile court found sufficient grounds to terminate the parents’ rights but refused to do so because it was not in the children’s best interests. See id. The appellate court affirmed: “It is conceivable that grounds for termination may exist, but termination nonetheless is not in the best interest of the children. For example, the children lose certain rights when termination occurs, such as support from their parents.” Id. at ¶ 13.

¶ 20 The juvenile court applied the same reasoning to B.J.B. It recognized B.J.B.’s parental misconduct, but it declined to terminate his parental rights because termination would end all B.J.B.’s support obligations to his legal child. Accordingly, the juvenile court did not commit clear error in refusing to terminate B.J.B.’s parental rights.

CONCLUSION

¶21 We conclude that the juvenile court did not commit reversible error in denying B.J.B.’s motions. Section 78-3a-404 does not apply to voluntary petitions to terminate parental rights. In any event, the juvenile court did not commit clear error in determining that termination was not in the best interests of the child. Accordingly, we affirm.

¶22 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge and RUSSELL W. BENCH, Judge.

      . B.J.B. also argues that the juvenile court erred in refusing to enter H.J.'s default. We do not consider this argument in depth, however, because the policy considerations and precedent on which the juvenile court based its decision are well within its discretion. See Crookston v. Fire Ins. Exch., 860 P.2d 937, 938 (Utah 1993) (stating that there is no abuse of discretion unless there is "no reasonable basis” for the trial court’s decision).

      . No person ought to have advantage from his own wrong.

      . "There is a presumption that voluntary relinquishment or consent for termination of parental rights is not in the child's best interest where it appears to the court that the primary purpose is to avoid a financial support obligation. The presumption may be rebutted, however, if the court finds the relinquishment or consent to termination of parental rights will facilitate the establishment of stability and permanency for the child.” Utah Code Ann. § 78-3a-414(6) (2002).

      . While we recognize some inequity in requiring non-biological fathers to support their children, we cannot reverse on these grounds. Our legislature has made provision for those who have signed a voluntary declaration of paternity to rescind their acknowledgment pursuant to Utah Code Ann. § 78-45e-4 (2002). First, it may be rescinded within the earlier of sixty days of signing or the date of an official proceeding regarding the child. Thereafter, the declaration may be challenged on the grounds of fraud, duress, or material mistake of fact. B.J.B. made a section 78-45e-4 argument in a previous proceeding, but he elected not to appeal the trial court's adverse ruling. Accordingly, the trial court’s ruling became the law of the case. See Thurston v. Box Elder County, 892 P.2d 1034, 1037 (Utah 1995) (stating that "[t]he ‘law of the case’ is a legal doctrine under which a decision made on an issue during one stage of a case is binding in successive stages of the same litigation”).


source: Caselaw Access Project

author: BILLINGS, Associate Presiding Judge.

license: Public Domain

text:
    2003 UT App 49
    Lori McCOY and Labor Commission, Respondents, v. UTAH DISASTER KLEENUP and Workers Compensation Fund, Petitioners.
    No. 20020234-CA.
    Court of Appeals of Utah.
    Feb. 21, 2003.

      Eugene C. Miller Jr., Workers Compensation Fund of Utah, Salt Lake City, for Petitioners.
    Alan Hennebold, Labor Commssion, Gary E. Atkin, and Marsha Atkin, Atkin & Associates, Salt Lake City, for Respondents.
    Before Judges BILLINGS, ORME, and THORNE.
   OPINION

BILLINGS, Associate Presiding Judge.

¶ 1 Utah Disaster Kleenup and the Workers’ Compensation Fund of Utah (collectively Kleenup) petition this court for review of Labor Commission (the Commission) orders affirming an award of temporary total and partial disability compensation to Lori McCoy. We dismiss the appeal for lack of jurisdiction.

BACKGROUND

¶ 2 McCoy filed an application for hearing and claim for compensation with the Commission on June 14, 2000. In the application, McCoy sought, inter alia, temporary total disability compensation beginning March 3, 1997, the date upon which McCoy terminated her employment with Kleenup.

¶ 3 In September 2000, an independent medical examination was conducted. The examiner opined that McCoy had suffered a cervical spine injury as a result of a 1997 work-related accident. He further opined that McCoy “ha[d] not reached maximal medical improvement in relation to this claim as the diagnostic workup [was] incomplete.”

¶4 Thereafter, a hearing was held on McCoy’s request for compensation. At the hearing, Kleenup maintained that under the Workers Compensation Act, McCoy was not entitled to temporary disability compensation from the date she terminated her employment with Kleenup to the date when Kleenup received the examiner’s report and began paying compensation. Citing to section 35-1-65 (1994) of the Worker’s Compensation Act, Kleenup argued that because McCoy did not have a light duty release when she terminated her employment, Kleenup had no duty to offer McCoy light duty work, and consequently no duty to pay her temporary disability.

¶ 5 Following the hearing, the administrative law judge (ALJ) awarded McCoy temporary total and partial disability from the date she terminated her employment with Kleen-up. The ALJ concluded that because McCoy was totally disabled and not medically stable when she terminated her employment with Kleenup, Kleenup was obligated to pay McCoy compensation from that date. Kleen-up petitioned the Commission for review of the ALJ’s award.

¶ 6 In an order dated January 31, 2002, the Commission affirmed the ALJ’s award of temporary total and partial disability compensation, adopting and supplementing the ALJ’s factual findings. The Commission ruled that because McCoy was unable to perform her regular duties on the date she terminated her employment with Kleenup, she was totally disabled from that date.

¶ 7 On February 20, 2002, Kleenup filed a motion for reconsideration, arguing the Commission’s January 31, 2002 order was contrary to its findings and to the law. On February 25, 2002, pursuant to Utah Code Ann. § 63-46b-l(9) (1997) (allowing the Commission to extend reconsideration period for good cause), the Commission ordered a time extension for ruling on Kleenup’s motion for reconsideration. In the order, the Commission extended the time for ruling until March 11, 2002, to allow “the other parties ... to respond to Kleenup’s request for reconsideration” and “to allow [the Commission] sufficient time to consider the request.” The Commission also indicated that a final decision would issue in the matter “no[ ] later than March 31, 2002.”

¶ 8 On March 27, 2002, Kleenup filed a petition for review with this court. In the petition, Kleenup sought review of the Commission’s January 31, 2002 order denying review. Kleenup also sought review of the Commission’s order denying Kleenup’s request for reconsideration, which was “considered issued” on March 12, 2002, under Utah Code Ann. §§ 63-46b-13,-14, and -16 (1997 & Supp.2002). On March 28, 2002, the Commission issued an order denying Kleenup’s request for reconsideration. In the order, the Commission provided notice that “[a]ny party may appeal this Order to the Utah Court of Appeals by filing a Petition for Review with that Court within 30 days of the date of this Order.”

ISSUE AND STANDARD OF REVIEW

¶ 9 McCoy argues that we lack jurisdiction to consider Kleenup’s petition for review because the petition was filed prematurely. This issue presents a question of law that we review “under a correctness standard.” Bourgeons v. Department of Commerce, 1999 UT App 146, ¶ 5, 981 P.2d 414.

ANALYSIS

¶ 10 McCoy maintains Kleenup’s petition for review was filed prematurely with this court before a final agency action issued. Therefore, McCoy argues this court lacks jurisdiction and must dismiss the petition. See Maverik Country Stores, Inc. v. Industrial Comm’n of Utah, 860 P.2d 944, 951 n. 11 (Utah Ct.App.1993) (stating this court would dismiss an appeal “from a non-final order over which we ha[d] no jurisdiction”).

¶ 11 This court “has appellate jurisdiction ... over ... final orders and decrees resulting from formal adjudicative proceedings of state agencies.” Utah Code Ann. § 78-2a-3(2)(a) (2002) (emphasis added); see also Id. § 63-46b-16(l) (1997) (“As provided by statute, ... the Court of Appeals has jurisdiction to review all final agency action resulting from formal adjudicative proceedings.” (Emphasis added.)).

¶ 12 Our review is further governed by the Utah Administrative Procedures Act (UAPA). See Utah Code Ann. §§ 63-46b-0.5 to -23 (1997 & Supp.2002). UAPA provides that a party “shall file a petition for judicial review of final agency action within 30 days after the date that the order constituting the final agency action is issued or is considered to have been issued under Subsection 63-46b-13(3)(b).” Id. § 63-46b-14(3)(a) (emphasis added). Subsection 63-46b-13(3) provides: “The agency head, or a person designated for that purpose, shall issue a written order granting ... or denying the request.” Id. § 63-46b-13(3)(a). “If the agency head or the person designated for that purpose does not issue an order within 20 days after the filing of the request, the request for reconsideration shall be considered to be denied.” Id. § 63-46b-13(3)(b).

¶ 13 Kleenup argues that its March 27, 2002 petition was timely because it was filed within thirty days after the “considered denied” date of March 12, 2002, which was twenty days after McCoy’s motion for reconsideration. See id. §§ 63-46b-13-13(3)(b), - 14(3)(a). McCoy maintains that the “considered denied” date was March 31, 2002 because the Commission had the power to change the “considered denied” time period under Utah Code Ann. § 63-46b-l(9), and did so in its February 25, 2002 order. Accordingly, McCoy argues Kleenup’s petition was premature because: (a) it was filed the day before the Commission’s March 28, 2002 final order denying Kleenup’s motion for reconsideration; and (b) it was filed before the “considered denied” date of March 31, 2002, under Utah Code Ann. §§ 63-46b-13(3)(b) and -14(3)(a).

¶ 14 The Utah Supreme Court has held that an agency has jurisdiction “to act on a motion for reconsideration after the 20-day presumptive denial period in section 63-46b-13(3)(b)” has passed. Prince v. Collection Div. of the State Tax Comm’n, 1999 UT 11,¶¶ 3-5, 974 P.2d 284 (dismissing petition for review of grant of reconsideration request because there was no final agency action, although tax commission granted motion months after request was filed and after 20-day “presumptive period” had passed); see also Evans & Sutherland Computer Corp. v. State Tax Comm’n, 953 P.2d 435, 439 (Utah 1997) (concluding tax commission had “continuing jurisdiction to enter an order on a request for reconsideration even after the request ha[d] been deemed denied under section 63-46b-13(3)(b)”).

¶ 15 The Utah Supreme Court has also held that an agency may extend the time for responding to and considering a reconsideration request. See Evans & Sutherland, 953 P.2d at 439.

¶ 16 In several cases, Utah appellate courts have held that a petition for appellate review is timely if filed within thirty days of a “final” agency order denying a request for reconsideration that issued more than thirty days after the “considered denied” date. See, e.g., Harper Inv., Inc. v. Auditing Div., State Tax Comm’n, 868 P.2d 813, 816 (Utah 1994) (“[Bjeeause the Commission chose to consider the petition for reconsideration and to act on it by issuing an order, the period for seeking review did not begin to run until the date of that final opinion. As a result, once the order was issued, the [petitioner] had an additional thirty days to file.”); Jf9th St. Galleria v. State Tax Comm’n, 860 P.2d 996, 999 (Utah CtApp.1993) (concluding tax commission could not claim petition for review within thirty days of “final” order issued well beyond twenty day deemed denied period was untimely “[djespite its own delay in disposing of the reconsideration request”).

¶ 17 The Utah Supreme Court has also stated “that if an agency chooses to issue an order denying a petition for reconsideration after the twenty-day presumptive denial period, the actual date of issuance would mark the beginning of the thirty-day time period.” Harper, 868 P.2d at 816.

¶ 18 Recently, the Utah Supreme Court approached a scenario somewhat similar to ours. In Evans & Sutherland, the central issue facing the court was whether retroactive application of a statute permitting review in the district courts deprived the respondent of a final agency order. See 953 P.2d at 438-39. In that case, the petitioner filed a request for reconsideration with the agency and then filed a “protective petition for review’ with the supreme court within thirty days of the considered denied date. Id. at 436-37. The agency “sought to extend indefinitely its period of time for considering and acting on [a request for consideration] to give the parties tune to brief the issues raised ... and to give the [agency] sufficient time to consider the request.” Id. The agency issued the order partially granting the request almost a year after the considered denied date. See id. at 437 n. 7. Thereafter, the petitioner filed a petition for review in the district court under a statute enacted in the interim, which allowed district court review of final agency actions. See id. at 437. The supreme court, apparently for a second time, stayed the protective petition for review filed with the supreme court to allow the district court to proceed with issues presented on appeal. See id. at 437 n. 4. In concluding the respondent had not been denied a final order, the court noted that the agency had “continuing jurisdiction to enter an order on [the] request for reconsideration even after the request ha[d] been deemed denied under section 63-46b-13(3)(b).” Id. at 439. Therefore, the court concluded that the “order denying [the petitioner’s] request for reconsideration after the ‘considered denied’ period ... had expired” was the “final decision,” and the petitioner “properly sought review of that final decision.” Id. However, the court also noted:

[T]he legislature has created significant problems by permitting the Commission to enter an order on a request for reconsideration even after the request has been deemed denied pursuant to section 63-46b-13(3)(b) and the agency action is ap-pealable under section 63^6b-14. As Justice Howe noted in his dissent in Harper Investments, where a “party has requested reconsideration by the administrative agency but no action has been taken on the request by the end of twenty days, an appeal must then be filed.” If an appeal is not filed, a party is exposed to the risk that the agency will never act on the request and the time for filing an appeal will expire. 868 P.2d at 817 (Howe, J., dissenting). As Justice Howe further observed, however, “If ... the agency later ... acts on the request and denies it, the appeal which has been taken turns out to be premature and must be dismissed. The party must then file a second appeal, supposedly pay another filing fee, and continue pursuit of the appeal.” Id. (Howe, J., dissenting).

Evans & Sutherland, 953 P.2d at 439 n. 8.

¶ 19 We agree with Justice Howe that this statutory scheme is unfortunate. Under the statutory provisions as interpreted by Utah’s appellate courts, Kleenup’s petition for review was premature because it was filed before the Commission’s final agency action denying Kleenup’s motion for reconsideration.

¶ 20 The Commission entered an order on February 25, 2002, informing the parties that it was extending the time for considering the request for reconsideration. The subsequent final order of March 28, 2002, wherein the Commission denied Kleenup’s request for reconsideration, included a notice that the parties had thirty days from the date of that final order to petition this court for review. Kleenup did not file a petition for review within thirty days of that final order. Consequently, under Harper and Evans & Sutherland, we lack jurisdiction in this case. Therefore, we dismiss Kleenup’s petition for review.

¶ 21 WE CONCUR: GREGORY K. ORME and WILLIAM A. THORNE JR., JJ.

      . See Utah Code Ann. §§ 35-1-1 to -109 (1994).

      . The propriety of the compensation paid by Kleenup following receipt of the examiner's report is not at issue on appeal.

      . Rule 4(c) of the Utah Rules of Appellate Procedure provides that "a notice of appeal filed after the announcement of a decision, judgment, or order but before the entry of the judgment or order of the trial court shall be treated as filed after such entry," is not applicable here. See Utah R.App. P. 18 (stating rules 3 through 8 are not applicable in agency context).

      . Utah Code Ann. § 63-46b-l(9) (1997 & Supp. 2002) provides that "[n]othing in this chapter may be interpreted to restrict a presiding officer, for good cause shown, from lengthening or shortening any time period prescribed in this chapter, except those time periods established for judicial review."


author: THORNE, Judge.

text:
    2003 UT App 52
    STATE of Utah, Plaintiff and Appellee, v. Norm SMITH, Defendant and Appellant.
    No. 990236-CA.
    Court of Appeals of Utah.
    Feb. 21, 2003.

      Margaret P. Lindsay, Aldrich Nelson Weight & Esplín, Provo, for Appellant.
    Mark L. Shurtleff, Attorney General, and Jeffrey S. Gray, Assistant Attorney General, Salt Lake City, for Appellee.
    Before Judges BILLINGS, ORME, and THORNE.
   OPINION

THORNE, Judge.

¶ 1 Norm Smith appeals from convictions for using a concealed weapon in the commission of a crime of violence, a second degree felony, in violation of Utah Code Ann. § 76-10-504(3) (1995), and two counts of aggravated assault, both third degree felonies, in violation of Utah Code Ann. § 76-5-103 (1995). We affirm in part and reverse in part.

BACKGROUND

¶ 2 On the morning of April 9, 1996, Smith and his friend Clayton Call drove to Smith’s property in Virgin, Utah. Once there, Smith suspected that someone had vandalized or stolen some of his personal property. Both men left to look for Smith’s missing property. Smith retrieved a holstered pistol from his residence and placed it around his waist. Smith then telephoned his wife and told her to report the suspected theft and vandalism.

¶3 Both men returned to the property, where Smith spoke to his neighbors, Ron and Sharon Felton. Afterwards, for reasons not clear from the record, Smith began pacing up and down the property and throwing dirt clods at the Felton’s home, prompting Sharon Felton to call 911.

¶4 Eventually, Call left, but returned to warn Smith that two sheriff cars were heading toward the property. Shortly before Deputies Johnny Owen and Lorin Orvin arrived, Sharon Felton observed Smith pull his shirt down, covering the pistol. After the two deputies exited their vehicles, Deputy Owen advised Smith that they had received a complaint that he was brandishing a weapon. When Deputy Owen asked Smith if he had a weapon, Smith lifted up his shirt to expose his pistol and placed his hand on the butt of the gun. Deputy Owen asked Smith to surrender the gun, but Smith refused.

¶5 Deputy Owen slowly moved toward Smith and repeatedly asked him to surrender the gun. Smith backed away, turned, ran, and hid in a partially-constructed building on the property. The deputies pursued him, positioning themselves outside two separate windows.

¶ 6 Once in the building, Smith attempted to conceal himself behind several garbage cans. The deputies urged Smith to surrender his weapon. When Smith responded that he could shoot the deputies, Deputy Orvin told Smith that although he may very well shoot one of them, the other would shoot Smith before he could shoot them both. Smith then dropped to his knees and pointed his pistol directly at Deputy Orvin. Deputy Orvin took cover and radioed for assistance.

¶7 After several minutes of negotiation, Smith surrendered, and was arrested and charged with carrying a concealed dangerous weapon, two counts of aggravated assault, and interfering with a lawful arrest. A jury convicted Smith on each count. The trial court suspended prison terms of one to fifteen years on the second-degree felony and zero to five years on each aggravated assault charge. The court also sentenced Smith to serve 60 days in the county jail, pay $2,000 in fines, $300 in costs, and serve 36 months probation. Smith now appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 8 Smith first argues that he was denied his Sixth Amendment right to call witnesses and to confront the witnesses against him. When reviewing a trial court’s decision not to allow a defendant to call a witness or to limit the cross-examination of a witness, we “review the legal rule applied for correctness and the application of the rule to the facts of the case for an abuse of discretion.” State v. Chavez, 2002 UT App 9, ¶ 17, 41 P.3d 1137.

¶ 9 Smith next argues that the trial court erred by refusing to merge the aggravated assault charges with the concealed weapon charge. “Merger issues present questions of law, which we review for correctness.” State v. Diaz, 2002 UT App 288, ¶ 10, 55 P.3d 1131, cert denied, 63 P.3d 104, 2003 Utah Lexis 4 (2003).

¶ 10 Smith next argues that the evidence was insufficient to support his conviction for carrying a concealed weapon in the second degree. “In considering an insufficiency-of-evidence claim, we review the evidence and all reasonable inferences that may be drawn from it in a light most favorable to the verdict.” State v. Dunn, 850 P.2d 1201, 1212 (Utah 1993).

¶ 11 Smith also argues that the trial court committed plain error in failing to instruct the jury that threatening with a dangerous weapon is a lesser included offense of aggravated assault. To establish plain error, Smith must show that: “(i) an error was made; (ii) the error should have been obvious to the trial court; and (iii) the error was harmful, so that in the absence of the error, a more favorable outcome was reasonably likely.” State v. Helmick, 2000 UT 70, ¶ 9, 9 P.3d 164.

¶ 12 Finally, Smith argues that his trial counsel rendered ineffective assistance. We review this claim as a matter of law. See State v. Maestas, 1999 UT 32, ¶ 20, 984 P.2d 376.

ANALYSIS

I. Right to Call and Confront Witnesses

¶ 13 Smith first asserts that he was denied his Sixth Amendment right to call a witness when the trial court denied his request to call Ron Felton. To establish a violation of his constitutional right to call a witness, “a criminal defendant ... must make some possible showing that the testimony of the absent witness ‘would have been both material and favorable to his defense.’ ” State v. Schreuder, 712 P.2d 264, 274 (Utah 1985) (quoting United States v. Valenzuela-Bernal, 458 U.S. 858, 873, 102 S.Ct. 3440, 3449, 73 L.Ed.2d 1193 (1982)). “Testimony is material, and its exclusion therefore prejudicial, if there is a reasonable probability that its presence would affect the outcome of the trial.” Id. at 275.

¶ 14 Here, Smith asked to call Ron Felton as a witness. Smith had spoken with Ron Felton several hours before the deputies arrived and Smith alleged that Ron Felton would have testified that Smith had been calm during that conversation. Smith argued that Ron Felton’s testimony was necessary to rebut testimony that he was agitated and excited when the deputies first arrived at the property. The trial court excluded Ron Felton’s testimony because it found the testimony to be too attenuated from the encounter with the deputies to be relevant or material.

¶ 15 Smith’s demeanor hours before the deputies arrived has no bearing on whether he, in fact, carried a concealed weapon, assaulted the deputies, or interfered with a lawful arrest hours later. Furthermore, Smith’s own witness, Call, testified that immediately before and during the incident, Smith was angry and agitated. Smith also acknowledged, in his own testimony, that he was “irritated” with the sheriffs office and its deputies. In light of the testimony of both Smith and Call, and the intervening time lapse, it is extremely unlikely that Ron Felton’s testimony would have affected the outcome of the trial. Thus, the testimony was not sufficiently relevant or material and the trial court did not violate Smith’s Sixth Amendment rights when it excluded the testimony.

¶ 16 Smith next argues that the trial court violated his Sixth Amendment right to confront the witnesses against him when the trial court limited his cross-examination of Deputy Orvin. This court has held that trial judges may impose reasonable limits on cross-examination if interrogation is “ ‘repetitive or only marginally relevant.’ ” Chavez, 2002 UT App 9 at ¶ 19, 41 P.3d 1137 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986)).

¶ 17 It is within the trial court’s permitted range of discretion to limit cross-examination on matters which are either marginally relevant or pointlessly repetitive. See id. Here, prior to cross-examination, Deputy Orvin testified for approximately thirty-four minutes over the course of two days. Smith then cross-examined him for approximately fifty minutes before the trial court ordered a recess. During that recess, the court advised Smith that he was imposing a thirty-minute time limit on the remainder of Smith’s cross-examination because the court believed that Smith was “straying off into the minutiae.” After thirty minutes of additional cross-examination, the court informed Smith that he had reached his time limit. However, upon Smith’s request, the court allowed him to continue asking questions regarding his surrender. When it became obvious that the cross-examination was no longer relevant, the trial court directed Smith to stop.

¶ 18 Thus, Smith was given over eighty minutes to cross-examine Deputy Orvin. Smith chose to use this time to question Deputy Orvin about such things as the location of the deputies’ ears, the type of animals on the property, the characteristics of the fence, and other matters irrelevant to the proceedings. A defendant is not entitled to an unlimited or pointless examination of witnesses. See generally id. After reviewing the record, we conclude that the trial court’s limitation did not prevent Smith from eliciting testimony necessary to his defense. The trial court simply restricted Smith from questioning the witness about matters which were only marginally relevant or that were pointlessly repetitive of earlier testimony. Thus, Smith was given an adequate opportunity to cross-examine Deputy Orvin and his Sixth Amendment right to confront a witness against him was not violated.

II. Merger of Lesser Included Offense

¶ 19 Smith next argues that aggravated assault is a lesser included offense of second-degree use of a concealed weapon and the trial court erred by refusing to merge the two crimes. “Merger is a judicially-crafted doctrine available to protect criminal defendants from being twice punished for committing a single act that may violate more than one criminal statute.” State v. Diaz, 2002 UT App 288, ¶ 17, 55 P.3d 1131. This principle has been codified at Utah Code Ann. § 76-1-402(3) (1999), which provides that “[a] defendant may be convicted of an offense included in the offense charged but may not be convicted of both the offense charged and the included offense.”

¶ 20 Here, to convict Smith of carrying a concealed weapon in the second-degree, the State had to prove that Smith used a concealed weapon in the commission of a “crime of violence,” in this case aggravated assault. Utah Code Ann. § 76-10-504(3) (1995). Accordingly, to convict Smith of a second degree felony the State had to prove each and every element of aggravated assault plus the elements of the weapon charge. Consequently, the third-degree aggravated assault was “established by proof of the same or less than all of the facts required to establish” the second-degree weapons offense. Utah Code Ann § 76-l-402(3)(a). Pursuant to a traditional merger analysis, the underlying aggravated assault charges should merge into the second-degree felony. See, e.g., State v. Fin-layson, 2000 UT 10,¶ 16, 994 P.2d 1243 (noting “the inquiry of whether one crime is a lesser included offense of a greater crime under section 76-1-402, [and merges therein] turns on the statutorily defined elements of the two crimes”).

¶ 21 To counter Smith’s contention that the crimes should merge, the State relies upon the reasoning found in State v. McCovey, 803 P.2d 1234 (Utah 1990). In McCovey, the Utah Supreme Court concluded that an underlying felony did not merge into a felony murder charge. See id. at 1239. Central to the court’s conclusion was its determination that the felony murder statute was an enhancement statute. See id. at 1238-39. The court stated that “enhancement statutes are different in nature than other criminal statutes.” Id. at 1237. By creating an enhancement statute the legislature communicated its intent that underlying crimes not merge with the specific enhanced crime. See generally id. at 1239; see also State v. Eisner, 2001 UT 99, ¶ 63, 37 P.3d 1073 (noting the court in McCovey “explicitly premised [its] holding [not to merge] on the legislature’s intent”).

¶22 After considering Utah Code Ann. § 76-10-504 in light of McCovey, we agree with the State and conclude that it is most properly characterized as an enhancement statute to which the legislature did not intend merger to apply. The legislature determined that “[i]f the concealed firearm is used in the commission of a crime of violence as defined in [s]eetion 76-1-501, and the person is a party to the offense” then the concealed weapon offense is enhanced to a second degree felony. Utah Code Ann. § 76-10-504(3). The penalties imposed by section 76-10-504 increase proportionally to the increased risk to the public, and this graduated punishment scale is indicative of an enhancement statute. Moreover, “[i]t is the prerogative of the legislature to prescribe the punishment for crimes. Included therein is the authority to increase the degree of crime, where instruments of violence, such as explosives or firearms are used.” State v. Angus, 581 P.2d 992, 994-95 (Utah 1978)(footnote omitted).

¶23 We conclude that the legislature intended section 76-10-504 to act as an enhancement statute and thereby communicated its intent that the underlying violent crime remain separate from the concealed weapon charge. Thus, we conclude that Smith’s claim that his aggravated assault charges should have merged with the concealed weapon charge is without merit.

III. Insufficiency of the Evidence

¶ 24 Smith claims that the evidence was insufficient to sustain the jury’s verdict that he used a concealed firearm in the commission of a crime of violence. Smith asserts that the State failed to meet its burden of proof in showing that he “knowingly and intentionally” concealed the firearm. However, section 76-10-504(3) does not specify a culpable mental state. Thus, contrary to Smith’s argument, the State was not required to prove intent or knowledge; rather, if the evidence was sufficient to show that Smith’s conduct was reckless, the State has met its burden. See Utah Code Ann. § 76-2-102 (1999) (noting when an offense is not a strict liability offense and does not specify a culpable mental state, “intent, knowledge, or recklessness shall suffice to establish criminal responsibility”).

¶25 Here, the State presented evidence that Smith picked up a holstered pistol at his residence and put it around his waist. The State also presented evidence that just before the deputies arrived at the property, Smith untucked his shirt so that it obscured the pistol from view. The deputies testified that upon arriving at the property, they did not see the pistol and had to question Smith about its existence. Upon admitting that he had a pistol, Smith had to raise his shirt to reveal it. This is sufficient evidence from which a reasonable jury could have determined that Smith recklessly or intentionally concealed the pistol.

¶26 Smith also claims the evidence was insufficient to establish that he used a concealed firearm in the commission of a crime of violence because the pistol became unconcealed during the aggravated assault. The plain language of the statute does not require that the commission of the crime be contemporaneous with the concealment of the weapon. Nor does Smith present case law, either from Utah or elsewhere, to support such a proposition. Thus, we conclude that the trial court did not commit error in refusing to set aside the verdict on this basis.

IV. Plain Error

¶ 27 Smith next claims that the trial court committed plain error in failing to instruct the jury that threatening with a dangerous weapon, pursuant to Utah Code Ann. § 76-10-506, is a lesser included offense of aggravated assault. To establish plain error, Smith must show that “(i) an error was made; (ii) the error should have been obvious to the trial court; and (iii) the error was harmful, so that in the absence of the error, a more favorable outcome was reasonably likely.” Helmick, 2000 UT 70 at ¶ 9, 9 P.3d 164.

¶ 28 Smith relies on State v. Oldroyd, 685 P.2d 551 (Utah 1984), to support his claim of plain error. In Oldroyd, the Utah Supreme Court held that the defendant’s use of a weapon could have constituted either aggravated assault or threatening with a dangerous weapon and that the failure of the trial court to instruct the jury on this lesser included offense, after the defendant requested such an instruction, was reversible error. See id. at 554r-56.

¶ 29 Smith’s reliance upon Oldroyd is misplaced. In Oldroyd, the defendant requested the trial court to instruct the jury on the crime of threatening with a dangerous weapon because the evidence at trial supported such an instruction. See id at 553. In contrast, Smith never requested such an instruction and maintained his innocence throughout the trial. Smith’s defense was that he was unable to comply with the deputies’ request to surrender his weapon because he received conflicting instructions as to how to surrender the weapon.

¶ 30 In light of a claim of total innocence, it was not plain error for the trial court to fail to instruct the jury on the lesser included crime of threatening with a dangerous weapon when there was no request to do so' by either party. “[A]n accused may choose not to request instructions on lesser included offenses as a matter of trial strategy, usually in the belief that he can defeat the greater charge, but might not be able to defeat a lesser included offense.” State v. Howell, 649 P.2d 91, 94 (Utah 1982). Smith and his trial counsel could have made a reasonable strategic decision not to instruct the jury on the crime of threatening with a dangerous weapon out of fear that the jury might convict Smith of that crime if it was not able to agree that he was guilty of aggravated assault. Thus, the trial court did not err in failing to give this instruction.

V. Ineffective Assistance of Counsel

¶31 Smith claims that his counsel was ineffective because he did not request a dismissal of the concealed weapon charge after the State failed to introduce evidence in its ease-in-chief that Smith did not have a concealed weapon permit. “To show ineffective assistance of counsel, a defendant must show (1) that counsel’s performance was so deficient as to fall below an objective standard of reasonableness^] and (2) that but for counsel’s deficient performance there is a reasonable probability that the outcome of the trial would have been different.” Wick-ham v. Galetka, 2002 UT 72, ¶ 19, 61 P.3d 978 (quotations and citations omitted).

¶32 Pursuant to both section 76-10-504(l)(b) and jury instruction # 13D, the State was required to prove that Smith did not have a valid permit to carry a concealed weapon. However, in its case-in-chief, the State presented no evidence that Smith lacked such a permit. The State’s failure to present evidence to satisfy this necessary element of the offense would have entitled Smith to a dismissal on that count. See, e.g., State v. Kihlstrom, 1999 UT App 289, ¶8, 988 P.2d 949, cert denied, 4 P.3d 1289 (“If the prosecution has failed to present sufficient evidence to support its case, the trial court should dismiss.”).

¶33 Trial counsel’s failure to argue this lack of evidence after the State rested does not appear to have served a tactical purpose at trial; nor has the State offered a possible tactical purpose on appeal. “When no possible explanation or tactical reason exists for such a decision, we have held that the first part of the [ineffective assistance of counsel] test is satisfied.” Finlayson, 2000 UT 10, ¶24, 994 P.2d 1243 (citation omitted). We conclude that trial counsel’s failure to raise this lack of evidence as a basis for dismissal of the charge is “so deficient as to fall below an objective standard of reasonableness.” Wickham, 2002 UT 72 at ¶ 19, 61 P.3d 978.

¶ 34 Moreover, we conclude that “but for counsel’s deficient performance there is a reasonable probability that the outcome of the trial would have been different.” Id. (quotation and citation omitted). Had trial counsel raised this lack of evidence, there is a reasonable probability that the trial court would have dismissed the concealed weapon charge. Cf. Kihlstrom, 1999 UT App 289 at ¶ 8, 988 P.2d 949.

¶ 35 The State argues that even had Smith’s counsel moved for a directed verdict based on a lack of evidence, the State could have “properly and with little difficulty ... moved to reopen and supply the missing evidence.” State v. Lawrence, 120 Utah 323, 234 P.2d 600, 601 (1951). We are unconvinced. A trial court has discretionary authority to determine whether to reopen a case to admit additional evidence. See State v. Duncan, 102 Utah 449, 132 P.2d 121, 125 (1942). Here, where the State obviously failed to introduce a necessary element of the crime, we are not convinced that the trial court would have necessarily allowed the State to reopen its case and supply the missing evidence. Accordingly, because of trial counsel’s ineffective assistance related to this single charge, we reverse Smith’s conviction for second-degree concealment of a dangerous weapon and remand for a new trial on that count.

CONCLUSION

¶ 36 The trial court did not deny Smith his Sixth Amendment right to call witnesses, or to confront witnesses against him. The evidence was sufficient to convict Smith for aggravated assault, carrying a concealed weapon in the second degree, and resisting a lawful arrest. The trial court properly denied Smith’s request to merge the aggravated assault charges into the second-degree concealed weapon charge. It was not error for the trial court to fail to instruct on a lesser included offense nor was trial counsel ineffective for not demanding such an instruction.

¶37 However, we conclude that Smith’s trial counsel was ineffective in failing to move for a directed verdict after the State failed to present evidence that Smith did not possess a valid concealed weapon permit during its case in chief. Accordingly, we affirm Smith’s convictions for aggravated assault and resisting a lawful arrest, but reverse and remand Smith’s conviction for carrying a concealed dangerous weapon for a new trial.

¶ 38 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge, and GREGORY K. ORME, Judge.

      . " 'On appeal, we recite the facts from the record in the light most favorable to the jury’s verdict and present conflicting evidence only as necessary to understand issues raised on appeal.’ " State v. Bluff, 2002 UT 66,¶ 2, 52 P.3d 1210 (quoting State v. Daniels, 2002 UT 2,¶ 2, 40 P.3d 611), cert denied, - U.S. -, 123 S.Ct. 999, 154 L.Ed.2d 914, 2003 U.S. Lexis 935 (2003).

      . At trial, Smith sought to call Ron Felton to rebut Deputy Owen's testimony that Smith had been agitated during his encounter with the deputies. The trial court found the evidence too attenuated to be relevant and denied Smith's request. In contrast, on appeal Smith argues that Ron Felton’s testimony was relevant to rebut Sharon Felton’s testimony. However, Smith did not renew his request to call Ron Felton after Sharon Felton testified and does not argue plain error on appeal. Thus, we review only the trial court’s ruling that Ron Felton’s testimony was too attenuated to be relevant.

      . Smith preserved this issue hy raising it in a pretrial motion.

      . Smith later argues that his trial counsel was ineffective because he failed to request a directed verdict on his concealed weapon charge when the State presented no evidence that Smith did not have a permit to carry a concealed weapon. Smith, however, does not argue this as a basis for finding the evidence insufficient, for during his defense he testified that he did not possess such a permit. Consequently, we reserve our discussion of the State's failure to present such evidence during its case-in-chief to Smith's ineffectiveness argument.

      . Smith also raises the failure to request an instruction on a lesser included offense as grounds for finding his trial counsel ineffective. However, when omitting an instruction appears to be a matter of trial strategy, it will not be a basis for finding trial counsel ineffective. Cf. State v. Win-

        ward, 941 P.2d 627, 635-36 (Utah Ct.App.1997) (noting an ineffectiveness claim failed because defendant could not disprove that omission of the jury instruction was a "conscious trial strategy”).

      . While Smith was represented by counsel at his trial, he took a very active role in his own representation. For example, the trial court allowed Smith to conduct direct and cross-examinations of witnesses and to present argument to the court. The trial court’s decision to allow Smith to have counsel and yet appear to represent himself (on several occasions throughout the proceedings, Smith claimed he was acting either as co-counsel or pro se) is in conflict with our jurisprudence. See State v. Bakalov, 1999 UT 45,¶ 15, 979 P.2d 799 (noting that the right to represent oneself and the Sixth Amendment right to counsel are "mutually exclusive rights”). After reviewing the record, we conclude that Smith’s active participation in his own defense frustrated the judicial process. See id. at ¶ 17 (noting that "[a] criminal defendant may be asked, in the interest of orderly procedures, to choose between waiver [of counsel] and another course of action” (quotations and citations omitted)(second alteration in original)). We strongly caution trial courts from allowing defendants to represent themselves and have counsel, for it creates a situation where a defendant may both represent himself at trial and argue ineffective assistance of counsel on appeal.

      . Section 76-10-504 provides
      [A] person without a valid concealed firearm permit who carries a concealed dangerous weapon which is a firearm and that contains no ammunition is guilty of a class B misdemeanor, but if the firearm contains ammunition the person is guilty of a class A misdemeanor.

      If the concealed firearm is used in the commission of a crime of violence ... and the person is a party to the offense, the person is guilty of a second degree felony.
      Utah Code Ann § 76-10-504(l)(b), (3) (1999).

      . Remanding for a new trial on this count does not violate the tenets of double jeopardy, because we reverse Smith's conviction for "trial error” and not for insufficiency of the evidence.
      "[R]eversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect.”

        State v. Lamorie, 610 P.2d 342, 347 (Utah 1980) (alterations in original) (quoting Burks v. United States, 437 U.S. 1, 15, 98 S.Ct. 2141, 2149, 57 L.Ed.2d 1 (1978)).
      In State v. Higginbotham, 917 P.2d 545 (Utah 1996), the Utah Supreme Court excluded all evidence erroneously admitted at trial, see id. at 550, and concluded that without the evidence, the state had failed to prove "an essential element of the charge.” Id. The court then reversed and remanded for a new trial on that count. See id. at 551. Relying upon Lamorie, 610 P.2d at 347, the court stated:
      The court in Lamorie held, as we do here, that the prosecution failed to prove an essential element of the charge. The court remanded for a new trial after reversing the conviction, holding that doing so does not place the accused in double jeopardy because the error giving rise to the reversal, i.e., the trial court’s erroneous introduction of evidence, was "trial error” as distinguished from insufficiency of the evidence.

        Higginbotham, 917 P.2d at 550 (citations omitted).
      Here, the basis for our reversal is that Smith was deprived of his Sixth Amendment right to effective assistance of counsel, a determination that implies nothing regarding Smith’s guilt or innocence. Rather, our conclusion that Smith's trial counsel was ineffective speaks to an "error in the trial process and ... not an error in judgment concerning the quantum of evidence needed to convict and sentence.” See State v. Palmer, 257 Neb. 702, 600 N.W.2d 756, 780 (1999) (Connolly, J., concurring), cert denied, 528 U.S. 1192, 120 S.Ct. 1248, 146 L.Ed.2d 106 (2000). Thus, the error giving rise to the reversal in this case is trial error and remanding for a new trial does not violate double jeopardy.


author: HILL, Chief Justice.

text:
    2003 WY 41
    WADI PETROLEUM, INC., a Texas corporation Appellant, (Plaintiff), v. ULTRA RESOURCES, INC., a Wyoming corporation; and Questar Exploration & Production Company, a Texas corporation, Appellees, (Defendants).
    No. 02-22.
    Supreme Court of Wyoming.
    March 26, 2003.

      Terry W. Mackey and David Evans of Hickey, Mackey, Evans & Walker, Cheyenne, Wyoming, Representing Appellant. Argument by Mr. Mackey.
    Gerald Mason of Mason & Mason, P.C., Pinedale, Wyoming; and George W. Mueller of Burns, Wall, Smith & Mueller, P.C., Denver, Colorado, Representing Appellee Ultra Resources, Inc. Argument by Mr. Mason.
    Thomas Reese of Brown, Drew & Massey, LLP, Casper, Wyoming; and Brad W. Bres-lau of Grand & Breslau, P.C., Denver, Colorado, Representing Appellee Questar Exploration & Production Company. Argument by Mr. Reese.
    Before HILL, C.J., and GOLDEN, LEHMAN, and VOIGT, JJ, and BURKE, DJ.
   HILL, Chief Justice.

[¶ 1] Appellant, Wadi Petroleum, Inc. (Wadi), seeks review of the district court’s order granting a partial summary judgment in favor of Appellees, Ultra Resources, Inc. (Ultra) and Questar Exploration & Production, Inc. (Questar). The parties disagreed about the meaning of language used in an assignment of an oil and gas lease concerning the quantum of an overriding royalty interest. The district court heard and relied on extrinsic evidence in order to resolve what it considered an inherent ambiguity in the language used in the assignments. It is the district court’s reliance on such extrinsic evidence, rather than only looking at the four corners of the assignment, which is the central issue in this appeal. Wadi asserts that the plain language of the assignment is unambiguous, whereas Ultra and Questar contend that the language used is incomplete and indefinite, and its precise meaning cannot be ascertained with certainty unless extrinsic evidence is considered.

[¶ 2] We will affirm.

[¶ 3] Wadi proposes these as the issues to be decided:

I. Can an assignment filed of record transferring oil and gas interests be rendered ambiguous via the testimony of experts regarding industry custom and practice?
II. Is an executory contract of sale of a real property interest merged into the transfer document filed of record?
III. Is the most persuasive extrinsic evidence used in determining the intent of the parties documents authored by the parties contemporaneous to the assignment in question? Can a division order alter or amend an agreement or title documents?

Ultra and Questar filed a combined brief, but did not include a statement of the issues. We glean this summary of the issues from headings used within their brief:

I.The quantum of the overriding royalty interest conveyed by the BLM assignments was indefinite, unclear and not apparent thereby necessitating the introduction of extrinsic evidence.
A.Nature of ambiguity and lack of clarity.
1. [Wadi] takes inconsistent positions regarding whether the BLM assignments are silent as to proportionate reduction.
2. Silence can create ambiguity where the omitted term would naturally be present.
3. To avoid ambiguity regarding proportionate reduction, the parties must state explicitly the intention to reduce or not to reduce.
4. The BLM assignments are ambiguous on their facets].
B. Admission of extrinsic evidence regarding proportionate reduction is appror priate where the instrument is not clear on its face.
C. [Wadi] concedes [that] extrinsic evidence is necessary for the trial court to interpret the BLM assignments.
1. [Wadi’s] previous counsel agreed that extrinsic evidence was necessary to interpret the BLM assignments.
2. [Wadi’s] acquisition manager would have inquired further had he seen the BLM assignments.
3. The testimony of William Schwartz, [Wadi’s] expert witness, supported the need for extrinsic evidence to determine the quantum of interest reserved by Hondo.
II. Prior to this litigation, all attorneys examining title concluded that the BLM assignments were indefinite, unclear and not apparent.
III. The BLM assignments placed Wadi on inquiry notice with respect to whether proportionate reduction was intended.
IV. Extrinsic evidence indicates that the overriding royalty interests now owned by [Wadi] were intended to be proportionately reduced.
A. The 1978 agreement indicates that Hondo and EPNG intended the overriding royalty interest to be proportionately reduced absent specific language to the contrary.
B. The division orders signed by Hon-do reflect an intention to proportionately reduce the reserved overriding royalty interest.
1. The documents offered by [Wadi] as extrinsic evidence are silent as to proportionate reduction.
2. The extrinsic evidence offered by [Wadi] is subsequent to the 1978 transaction and therefore entitled to no greater weight than other extrinsic evidence.
3. The division orders signed by Hondo merely clarify [its] intent regarding proportionate reduction and do not alter or amend any contractual agreement.
C. EPNG, the other party to the transaction in 1978, agreed that it was the intention of the parties that Hondo’s reserved overriding royalty interest was to be proportionately reduced.
D. [Ultra’s and Questar’s] title experts opined that proportionate reduction of the reserved Hondo interest was likely intended by the BLM assignments.
V. The decision of this Court in Amoco Production Company v. EM Nominee Partnership Company is consistent with the trial court’s ruling in this case.
VI. [Wadi’s] interest can be no greater than the interest of its predecessors in interest.

FACTS

[¶ 4] The properties at issue in this case are included in a federal oil and gas unit (the Mesa Unit, formerly known as the Pinedale Unit) located in Sublette County, southwest of Pinedale. Significant new drilling and production commenced in the unit during 1997-98, which is the event that precipitated the controversy at hand, i.e., there was additional revenue to be divided up among the several interest holders. Ultra and Questar are two of the three working interest owners with respect to the leases at issue (the third working interest owner is not a party to this litigation). Questar is the operator of the unit. The six leases at issue have a lengthy title history, but it suffices to note here that, during late 1993 and early 1994, they were acquired by Wadi. Wadi claimed that it acquired a 3.125% overriding royalty interest (ORRI) in those leases, and Ultra and Ques-tar claimed that Wadi only acquired a .625% interest because Wadi’s predecessors in interest held only a 20% working interest (therefore, Wadi’s interest was 20% of 3.125% = .625%). The six leases at issue are these:

Lease # Wadi’s claimed OR I Conceded ORRI

WY-08589 3.125% .625%

WY-08592 3.125% .625%

WY-08593 3.125% .625%

WY-015315 3.125% .625%

WY-015317 3.125% .625%

WY-016167 3.125% + 1% .625% + 1% previously owned

[¶ 5] On Bureau of Land Management forms designed to accommodate the assignment of such interests, Wadi’s predecessors in interest indicated that the overriding royalty or production payments reserved were 3-1/8% of 8/8, as shown above. In another more-or-less contemporaneous document (which is referred to as the “1978 agreement”) relating to these same properties, this language was used by Wadi’s predecessors in interest:

... and reserving, however, unto Hondo, and El Paso does hereby, as may be necessary assign unto Hondo, an undivided l/16th of 8/8ths overriding royalty interest as to the lands and leases shown on exhibit B below the above-described depth limitation, which overriding royalty shall not be proportionately reduced if El Paso owns less than the entire leasehold interest; and further reserving unto Hondo all rights and interests of Hondo above said above depth limitation.
El Paso hereby agrees that El Paso shall assume any and all obligations, if any, of Hondo attendant to the interests of Hondo released or assign [sic ] hereby and further acknowledges that Hondo shall by separate assignments transfer unto El Paso all of the record title of Hondo within the Pinedale Unit as constituted prior to the September 12,1977 contraction, except those lands and leases shown on Exhibit B, reserving unto Hondo a 3-1/8% overriding royalty interest in addition to any existing leasehold burdens.

[¶ 6] There are two items in the above-quoted passage that contribute to the controversy at hand. First, with respect to the 1/16 of 8/8 royalty on exhibit B lands, the document specifically provides that it is not to be proportionately reduced. With respect to the 3-1/8% overriding royalty on other lands, which is the provision that affects the leases at issue herein, the document is silent as to proportionate reduction. Wadi contends that the document is clear that no proportionate reduction was intended with respect to any of the interests included in that document. On the other hand, Ultra and Questar contend that the document suggests that proportionate reduction was intended because of the silence; however, at a minimum, the silence creates an ambiguity which requires reference to evidence outside the four corners of the principal documents.

[¶ 7] The district court made detailed findings, and we will summarize the pivotal facts it included in those findings. As we embark on this summary, we take note that the record includes more than 1,000 pages of exhibits and more than 600 pages of testimony. It is conceded by all parties that Wadi owned whatever interests were owned by its predecessors in interest and, stated in other terms, there was nothing about the transaction which resulted in Wadi obtaining an interest which was either greater than or lesser than the interest which was created when the leases came into being. The six leases at issue here were purchased by Wadi as part of an agreement, which gave them an interest in some 900 wells and 300 fields. Those properties were divided into two categories, A and B properties. The six leases at issue were in the B category and were transferred without warranty of title, “as is, where is, with all faults and defects.” It was contended by Ultra and Questar that Wadi essentially paid nothing for the category B properties and the district court made a finding to that effect. As shall become evident as we proceed through a discussion of the issues, this “fact” (Wadi disputes the validity of the finding) plays no role in our decision, though it is a point that is a part of the “whole story.” The district court also found that Wadi did not diligently research exactly what it bought, especially with respect to the properties at issue, but we place this point in that same category as being a part of the “whole story,” although it has no direct impact on our ultimate decision. It is clear from the record that had Wadi been more diligent in its search of records it would have found that division orders, as well as other documents, indicated that Wadi’s interest in these six leases was very likely subject to proportionate reduction as claimed by Ultra and Questar. That too is part of the “whole story,” but we also need not rely on that circumstance as a part of the basis for our decision.

[¶ 8] The record in this case includes title examinations done by several experienced oil and gas lawyers, all but one of whom indicated that the probable consequence of the original leases and assignments would be that Wadi’s interest would be proportionately reduced to .625%. The record also reflects that Wadi’s predecessors in interest received all production revenue at the .625% rate.

[¶ 9] The district court determined “that the assignments in which the subject overrides were reserved are ambiguous as to the amount reserved,” and ultimately that, based on the extrinsic evidence considered, the ambiguity should be resolved in favor of Ultra and Questar.

STANDARD OF REVIEW

[¶ 10] The applicable standard of review is well-summarized in a ease that is cited by both parties for its substantive holdings, as well as for its articulation of the pertinent standard of review:

A summary judgment is appropriate in litigation when there are no genuine issues of material fact and the prevailing party is entitled to judgment as a matter of law. Aheam v. Anderson-Bishop Partnership, 946 P.2d 417, 421 (Wyo.1997); Woodard v. Cook Ford Sales, Inc., 927 P.2d 1168, 1169 (Wyo.1996); Roemer Oil Co. v. Aztec Gas & Oil Corp., 886 P.2d 259, 262 (Wyo.1994); see also, W.R.C.P. 56(c). In contract litigation, when the terms of the agreement are unambiguous, the interpretation is a question of law, and a summary judgment is appropriate because there is no genuine issue of material fact. Examination Management Services, Inc. v. Kirschbaum, 927 P.2d 686, 689 (Wyo.1996); Union Pacific Resources Co. v. Texaco, Inc., 882 P.2d 212, 218-19 (Wyo.1994). Whether a contract is ambiguous is a question of law for the reviewing court. Prudential Preferred Properties v. J and J Ventures, Inc., 859 P.2d 1267, 1271 (Wyo.1993). We review questions of law de novo without affording deference to the decision of the district court. Hermreck v. United Parcel Service, Inc., 938 P.2d 863, 866 (Wyo.1997); Griess v. Office of the Atty. Gen., Div. of Criminal Investigation, 932 P.2d 734, 736 (Wyo.1997).
According to our established standards for interpretation of contracts, the words used in the contract are afforded the plain meaning that a reasonable person would give to them. Doctors’ Co., v. Insurance Corp. of America, 864 P.2d 1018, 1023 (Wyo.1993). When the provisions in the contract are clear and unambiguous, the court looks only to the “four corners” of the document in arriving at the intent of the parties. Union Pacific Resources Co., 882 P.2d at 220; Prudential Preferred Properties, 859 P.2d at 1271. In the absence of any ambiguity, the contract will be enforced according to its terms because no construction is appropriate. Sinclair Oil Corp. v. Republic Ins. Co., 929 P.2d 535, 539 (Wyo.1996); Prudential Preferred Properties, 859 P.2d at 1271.

Amoco Production Company v. EM Nominee Partnership Company, 2 P.3d 534, 539-40 (Wyo.2000).

[¶ 11] We add this supplementation of that standard of review:

Our primary focus in construing or interpreting a contract is to determine the parties’ intent, and our initial inquiry centers on whether the language of the contract is clear and unambiguous. If the language of the contract is clear and unambiguous, then we secure the parties’ intent from the words of the agreement as they are expressed within the four corners of the contract. Common sense and good faith are leading precepts of contract construction, and the interpretation and construction of contracts is a matter of law for the courts. Reed, ¶ 10, 18 P.3d 1161. We have also recognized that the language of a contract is to be construed within the context in which it was written, and the court may look to the surrounding circumstances, the subject matter, and the purpose of the contract to ascertain the intent of the parties at the time the agreement was made. Polo Ranch Company v. City of Cheyenne, 969 P.2d 132, 136 (Wyo.1998).

Williams Gas Processing — Wamsutter Company v. Union Pacific Resources Company, 2001 WY 57, ¶ 12, 25 P.3d 1064, ¶ 12 (Wyo.2001); also see Boley v. Greenough, 2001 WY 47, ¶ 11, 22 P.3d 854, ¶ 11 (Wyo.2001) (“In interpreting unambiguous contracts involving mineral interests, we have consistently looked to surrounding circumstances, facts showing the relations of the parties, the subject matter of the contract, and the apparent purpose of making the contract.”); and Newman v. RAG Wyoming Land Company, 2002 WY 132, ¶¶ 11-12, 53 P.3d 540, ¶¶ 11-12 (Wyo.2002).

[¶ 12] However, if the meaning of a contract is ambiguous or not apparent, it may be necessary to use evidence in addition to the contract itself in order to determine the intention of the parties. In such instances, interpretation of the contract becomes a mixed question of law and fact. Wilder v. Cody Country Chamber of Commerce, 868 P.2d 211, 216 (Wyo.1994); Alexander v. Phillips Oil Company, 707 P.2d 1385, 1387 (Wyo.1985):

If the contract is ambiguous, the intent of the parties may be determined by resort to extrinsic evidence. Rouse, 658 P.2d at 78; Mountain Fuel Supply Co. v. Central Engineering & Equipment Co., 611 P.2d 863 (Wyo.1980). An ambiguous contract is one “which is obscure in its meaning because of indefiniteness of expression or because of a double meaning being present.” Farr, 746 P.2d at 433. See also Bulis, 565 P.2d at 490. The existence of ambiguity is a question of law. Hensley v. Williams, 726 P.2d 90 (Wyo.1986); Amoco Production Co., 612 P.2d at 465.

True Oil Company v. Sinclair Oil Corporation, 771 P.2d 781, 790 (Wyo.1989).

DISCUSSION

May Expert Testimony be Used to Render the Assignments Ambiguous?

[¶ 13] In his treatise on oil and gas law, Richard Hemingway includes this discussion which is especially apropos to the issue we must resolve in this ease:

(A) Deftnition of Fraction
As in the case of all interests carved out of the lessee’s interest, care must be used in defining the fraction or quantum interest. Pure Oil Co. assigns to A an overriding royalty of 1/16. Consider the following statements of interest:
(a) 1/16 out of the lessee’s 7/8 interest;
(b) 1/16 out of 7/8;
(c) 1/16 out of 7/8 working interest;
(d) 1/16 out of 7/8 leasehold.
In each instance the statement of the interest is ambiguous. In all four cases the interest is susceptible of two constructions: (1) that the interest is a full 1/16 interest (or 8/128) and is merely payable out of the lessee’s interest; or (2) that the quantum of the interest is of the lessee’s interest under the lease, and not of full production, i.e., 1/16 x 7/8 = 7/128. In both (c) and (d), an additional interpretation may be made that the interest is equal to 1/16 x 7/8 x 7/8 = 49/1008. This is due to the fact that the terms “working interest” and “leasehold estate” have a common meaning as the right to 7/8 of production. Since the fraction 7/8 and the particular phrase both appear in the clause it might be assumed by some that both be given effect. Therefore, it is necessary that the draftsman define the fraction precisely. If it is the intent that a full 1/16 interest be created the clause should read, “1/16 of 8/8 of production,” or “1/16 of gross production.” If the lesser interest, the phrase may read, “1/16 of 7/8 of 8/8 of production,” or “1/16 of 7/8 of gross production.”
An additional problem will occur where the lease from which the non-cost-bearing interest is created does not cover the full interest in the minerals. In the above illustration assume that the lease of Pure Oil Company covers only a one-half interest in the minerals. Two constructional problems occur. The first is whether the proportionate reduction clause in the lease applies to reduce the overriding royalty or production payment in proportion to the interest under lease. However, by the lease terms the proportionate reduction clause applies only to interests created under the lease.
The second problem is just the converse of the first. Where the non-cost-bearing interest is created under the ½ interest lease of Pure above, will it be automatically reduced in amount, due to the drafting of the assignment? It is the normal practice to tie the non-cost-bearing interest to the lease from which it is created. In the above illustration Pure drafts the following clause:
“ * * * an overriding royalty of 1/16 of 7/8 of 8/8 of all of the oil, gas and other minerals produced and saved under and by virtue of said lease.”
Query: As the lease covers only half of the minerals, does the non-cost-bearing interest refer only to the half mineral interest under the lease? Under some authority it would seem that the answer is yes, and that the overriding royalty interest created is only a 1/32.
To protect against either undesired result a clause should be inserted into the instrument providing that the non-cost-bearing interest will or will not be reduced, regardless of the interest under lease. Also a further provision may be inserted to deal with the effect of failure of title to the lease interest:
“Although it is believed that the net mineral interest in the said lease owned by the Assignor amounts to not less than a 0.876000 working interest, if by reason of failure of title in whole or in part, or for any other reason, the net mineral leasehold interest actually acquired by Assignor in said lease should be less than the interests hereinbefore set forth, then the overriding royalty interest herein assigned to Assignee shall not be reduced in amount as hereinabove set forth.”
Where it is desired that the overriding royalty be reduced the phrase may be changed to read, “then the overriding royalty interest herein assigned to Assignee shall bear its proportionate part of such loss and shall be reduced proportionately.” Where a partial interest lease is assigned and it is desired that the interest not be reduced due to title loss, recitations in the above clause should be changed appropriately. [Footnote omitted.]

Richard W. Hemingway, Law of Oil and Gas, § 9.9(A), at 635-637 (3rd ed.1991); also see 2 Howard R. Williams, Charles J. Meyers, Oil and Gas Law, § 411.1(e) and (d), at 308-13 (see esp. p. 312, “The assignment instrument may and should expressly provide for or against proportionate reduction.”) (2002); 4 Howard R. Williams, Charles J. Meyers, Oil and Gas Law, § 686.2, at 432-457 (see esp. p. 447, “It would be preferable under such circumstances to treat the instrument as ambiguous and to admit parol evidence to assist the fact finder in resolving this ambiguity [where proportionate reduction clause is lacking].”).

[¶ 14] Relying on this authority, we hold that the district court correctly concluded that the reservations of the overriding royalty interests were ambiguous due to a lack of clarity and incompleteness of expression. Therefore, we need not directly respond to this argument. Because the assignments did not make that point clear, they were ambiguous and it was necessary for the district court to consider extrinsic evidence, which properly included the opinions of experts in oil and gas law, in order to resolve the ambiguity which arose on the face of the assignments. The ambiguity was not structured by those opinions. They were merely used by the district court in resolving the pre-existing ambiguity. This readily distinguishes this case from Amoco Production v. EM Nominee Partnership, 2 P.3d 534, 541 (Wyo.2000) wherein we held:

Nothing in the language of Article 11 of the Unit Agreement addresses the repayment of leasehold royalties previously paid. Its plain language is concerned only with the potential of retroactive adjustment of royalties for production that had occurred prior to the effective date of the revision of the participating area. Amoco’s endeavor to invoke the testimony of experts with respect to industry custom and practice in applying this language inverts our rule with respect to extrinsic evidence. Instead of relying upon the extrinsic evidence to resolve an ambiguity, Amoco seeks to invoke the extrinsic evidence to structure an ambiguity. This would amount to this Court writing a new contract for the parties, and we are foreclosed from that endeavor. Union Pacific Resources Co., 882 P.2d at 220; Prudential Preferred Properties, 859 P.2d at 1271.

In the instant case the ambiguity is inherent in the assignments, and the extrinsic evidence is used only to assist the trial court in resolving the ambiguity.

Did the Executory Contract of Sale Merge into the Filed Transfer Document?

[¶ 15] In this argument, Wadi asserts that Ultra and Questar promote a theory that the original assignments “imply” proportionate reduction, and that the silence of the 1978 agreement with respect to proportionate reduction also “implies” that proportionate reduction should apply. Relying in part on our decision in EM Nominee, Wadi contends that “silence” does not create ambiguity. Again, EM Nominee is distinguishable in this regard. The authorities we have cited and relied upon emphasize that in an instance such as this, silence leaves open the question of proportionate reduction, whereas that line of reasoning was not applicable to the “silence” with which we were concerned in EM Nominee. In addition, Wadi recites this passage from 4,0 North Corporation v. Morrell, 964 P.2d 423, 426 (Wyo.1998) to advance an argument that the relevant title documents “merged” so as to render them unambiguous:

40 North accepted a warranty deed to the property in exchange for a promissory note and mortgage. While the executory contract for sale stated that the resulting mortgage would have a subordination clause, the final agreement did not include such a clause. At the time of delivery and acceptance of the deed, the executory contract for sale merged into the deed, mortgage and promissory note. 40 North can only assert breach of contract against the Morrells based upon the covenants in the deed, mortgage, and promissory note. Since there is no subordination clause in the mortgage, 40 North has no basis for asserting breach of contract.

Comparing the circumstances of the 40 North case to those of the instant case, we are simply unable to see the applicability of the “merger” theory propounded by Wadi. May a Division Order Alter or Amend the Title Documents?

[¶ 16] Wadi contends that the only documents that may be considered are the assignments themselves and the 1978 agreement. Wadi contends that the district court could not consider a March 15, 1984 Division Order, which indicated that Wadi’s predecessors in interest, Hondo, owned a .625% ORRI. Wadi contends that use of a division order in such a fashion is prohibited by Wyo. Stat. Ann. § 30-5-305(a) (LexisNexis 2001):

§ 30-5-305. Collection; reporting and remittance of royalties.
(a) Unless otherwise expressly provided for by specific language in an executed written agreement, “royalty”, “overriding royalty”, “other nonworking interests” and “working interests” shall be interpreted as defined in W.S. 30-5-304. A division order may not alter or amend the terms of an oil or gas lease or other contractual agreement. A division order that alters or amends the terms of an oil and gas lease or other contractual agreement is invalid to the extent of the alteration or amendment and the terms of the oil and gas lease or other contractual agreement shall take precedence.

[¶ 17] The flaw in this argument is that the division order was not used to “alter or amend” the terms of the assignments but only to assist the trial court in resolving the inherent ambiguity in the assignments.

[¶ 18] Finally, Wadi maintains that there are many other documents which were created both before and after the creation of the division order that indicate Wadi’s ORRI should be 3.125% and, therefore, there is no need to look at the division order. We have carefully reviewed those documents, and we are convinced that they do nothing more than perpetuate the ambiguity, which originated in the disputed assignments.

CONCLUSION

[¶ 19] We hold that the district court was correct, as a matter of law, in determining that the disputed assignments were ambiguous. Because the assignments were ambiguous, the district court properly examined extrinsic evidence in order to resolve the ambiguity. We also agree with the district court’s evaluation of the evidence that produced the conclusion that Wadi’s interest was proportionately reduced to .625%. The order of the district court is affirmed, and the matter is remanded to the district court for further proceedings consistent with this opinion.

      . The district court’s order included the required certification:
      Rule 54. Judgment; costs.

      (b) Judgment upon multiple claims or involving multiple parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
      W.R.C.P. Rule 54(b). (Emphasis added.)