author: LEHMAN, Justice.

text:
    2002 WY 173
    Thomas JENSEN, Appellant (Defendant), v. FREMONT MOTORS CODY, INC., a Wyoming corporation, Appellee (Plaintiff). Fremont Motors Cody, Inc. a Wyoming corporation, Appellant (Plaintiff), v. Thomas Jensen, Appellee (Defendant).
    Nos. 01-210, 01-211.
    Supreme Court of Wyoming.
    Nov. 27, 2002.

      Daniel M. Fowler of Fowler Schimberg & Flanagan, P.C., Denver, CO, Representing Thomas Jensen.
    S. Joseph Darrah of Darrah & Darrah, P.C., Powell, WY; and Timothy H. Scott of Fisher & Phillips, New Orleans, LA, Representing Fremont Motors Cody, Inc.
    Before HILL, C.J., and GOLDEN, LEHMAN,* KITE, and VOIGT, JJ.
   LEHMAN, Justice.

[¶ 1] Thomas Jensen (Jensen) appeals the district court’s denial of his request for attorney fees, interest, and costs pursuant to Wyo. Stat. Ann. § 27-<H04 (LexisNexis 2001). Specifically, Jensen contends that the damages awarded to him at trial under his breach of employment contract counterclaim against his former employer Fremont Motors Cody, Inc. (Fremont) are wages and, as such, the district court was required to award him attorney fees, interest, and costs. Fremont cross-appeals the district court’s denial of its motions for judgment as a matter of law and its combined motion for a new trial based on the contention that Jensen’s conduct clearly showed that he waived any breach of contract. Further, Fremont asserts that the district court’s jury instruction pertaining to waiver misled and confused the jury.

[¶ 2] We affirm.

ISSUES

[¶ 3] Collectively, the parties present five issues on appeal:

I.Whether the district court erred in denying Fremont’s motions for judgment as a matter of law and combined motion for a new trial based on the issue of waiver.
II. Whether the district court erred in failing to give the jury Fremont’s proposed instruction pertaining to contract waiver, and giving the jury a modified waiver instruction.
III. Whether the district court erred as a matter of law in refusing to allow the statutory remedies without a breakdown between Jensen’s wage claim and non-wage claims.
IV. Whether the district court erred as a matter of law in refusing to allow the statutory remedies because it deemed Jensen’s damages to be unliquidated.
V. Whether the district court erred as a matter of law by refusing to award “all costs of suit.”
FACTS

[¶ 4] Jensen and John Owen (Owen) met in 1984 while both worked at Greiner Ford in Casper. The two became good friends and remained so for many years. Jensen was an outstanding salesman at Greiner Ford selling three times the amount of an average salesman. In 1992, Owen and his two partners, Chuck and Jim Guschewsky, purchased Fremont. Owen left Greiner Ford upon the purchase of Fremont and moved to Cody. At this time, because Jensen was such an outstanding salesman, Owen offered Jensen a job as a salesman at Fremont. Jensen did not accept Owen’s offer of employment. Rather, Jensen left Greiner Ford accepting employment in Denver. Nevertheless, Owen was not deterred by Jensen’s rejection and extended a standing offer to Jensen for employment with Fremont.

[¶ 5] Subsequently, Jensen and Owen remained close friends keeping in contact with each dther. In the numerous visits and conversations that the two had, Owen repeatedly offered Jensen employment as a salesman, which Jensen rejected for various reasons. However, in January of 1995, Jensen and Owen began to have serious discussions about Jensen coming to work at Fremont. On February 28, 1995, Owen wrote a letter for Jensen to present to banks in order to secure financing on a house. The letter, in relevant part, stated: “This is to advise you that Tom Jensen’s employment at Fremont Motors Company in Cody, WY in a sales position will be commission and partial guarantee. In the event that his commissions fall short of $8,000 per month, Fremont Motor Company will make up the difference. Fremont Motors will also pay for his move.” No other documentation of this agreement exists, or, if it does exist, it was not presented at trial. Jensen began his employment as a sales manager on April 4,1995.

[¶ 6] Jensen worked as the sales manager of Fremont for approximately 28 months, officially resigning on July 13, 1997. During his employment, Jensen was paid in varying amounts every month. • Only on six occasions did Jensen’s monthly salary meet or exceed $8,000. Jensen never complained about-repeatedly being shorted to the other partner of Fremont, Chuck Gusehewsky, or to Jeanne Orkney, the company’s comptroller. Jensen claimed that he did complain to Owen and that Owen repeatedly told him to “hang tough with me” and things would get better. Owen denies that such conversations ever took place.

[¶7] Jensen, like many other Fremont employees, was given what the parties referred to as an accounts receivable account (A/R account). This arrangement allowed Jensen to make personal charges with businesses around Cody on accounts, which listed Fremont as the debtor. Fremont would pay these charges and then deduct the amount from Jensen’s paycheck at the end of the month. When Jensen received his paychecks, a sheet would be attached to the paycheck which itemized the charges attributed to his A/R account. Also attached to the check was a statement of how Jensen’s salary was calculated that period based on each vehicle sold, the profit on each vehicle, and his 6% commission for the vehicle. Jensen detached and discarded these statements.

[¶ 8] Over the term of his employment, Jensen’s relationship with Owen deteriorated, eventually resulting in Jensen’s resignation on July 13,1997. A balance of $4,883.18 remained on Jensen’s A/R account when he departed. As Fremont and its accountant were going over the company’s books at year end, they discovered that Jensen’s A/R account was still in existence. Chuck Gus-chewsky contacted Jensen at that time to determine if Jensen intended to pay off the account. Jensen assured him that he would pay what he owed and requested backup documentation. However, Jensen never made any payment to Fremont. On April 21, 1998, Fremont filed an action against Jensen in Park County Court for the collection of the A/R account. Jensen then filed a counterclaim asserting that he was entitled to additional wages based on the $8,000 guarantee and other contract damages. Jensen further claimed that should he prevail in showing wages justly due, he would be entitled to interest at the rate of eighteen percent (18%) per annum from the date of termination, reasonable attorney fees, and all costs of suit pursuant to Wyo. Stat. Ann. § 27-4-104..

[¶ 9] At the time of trial, Fremont claimed $4,857.09 was owed on Jensen’s A/R account. Jensen claimed $66,155.16 in damages including wages, moving expenses, and losses on the sale of various homes. After a five-day trial, the jury found that Jensen owed $2,912.77 on his A/R account. Additionally, the jury found that Jensen had a contract with. Fremont guaranteeing him $8,000 a month, that Fremont breached that contract, and that Jensen was entitled to damages in the amount of $20,496. Because Jensen was awarded damages on his breach of employment contract counterclaim, Jensen made a motion for the award of attorney fees, interest, and costs. The district court denied this motion after a brief hearing. This appeal followed.

[¶ 10] In addition, Fremont cross-appeals denial of its motions for judgment as a matter of law based on waiver of contract issues. Fremont made two motions for judgment as a matter of law during the course of the proceedings. The first came at the close of Fremont’s case in chief. The second motion occurred at the end of the proceedings. This second motion was for judgment as a matter of law or in the alternative for a new trial. The second motion asserted that Jensen failed to present sufficient evidence to create a triable jury issue, that Jensen waived any right he had to receive a minimum of $8,000 per month, and that the jury’s verdict was against the weight of evidence. These motions were denied by the district court.

STANDARD OF REVIEW

[¶ 11] Our standard of review related to judgment as a matter of law is well.known and well stated in John Q. Hammons Inc. v. Poletis, 954 P.2d 1353, 1356 (Wyo.1998) (citations omitted):

Our standard of review is the same whether it arises in the procedural context of a motion for judgment as a matter of law prior to the submission of the case to the jury (formerly, a motion for a directed verdict) or in the context of a renewed motion for judgment as a matter of law after the jury has returned a verdict (formerly, a motion for judgment notwithstanding the verdict). We undertake a full review of the record without deference to the views of the trial court. The test to be applied is whether the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable persons could have reached. We view the evidence in the light most favorable to the nonmoving party, and give that party the benefit of all reasonable inferences that may be drawn from the evidence. When the facts permit the drawing of more than one inference, it is for the jury to choose which will be utilized. Since a judgment as a matter of law deprives the party opposing the motion of a determination of the facts by a jury, it should be cautiously and sparingly granted.

Further, in Poletis our standard of review for a motion for a new trial on the ground that the verdict is against the weight of the evidence was set forth. “In contrast, a trial court is vested with broad discretion when ruling on a motion for new trial, and we will not overturn the court’s decision except for an abuse of that discretion.” Poletis, 954 P.2d at 1357.

[¶ 12] The standard of review that we utilize for alleged jury instruction error is:

In considering the validity of instructions to a jury, we must determine whether the instructions, taken as a whole, adequately advise the jury of the applicable law. Proper instructions should be clear declarations of the pertinent law. The ruling of a trial court on an instruction will not constitute reversible error unless there is a showing of prejudice, which connotes a demonstration by the complaining party that the instruction misled or confused the jury with respect to the applicable principles of law.

Ormsby v. Dana Kepner Co. of Wyo. Inc., 997 P.2d 465, 471 (Wyo.2000) (quoting L.U. Sheep Co., v. Board of County Comm’rs of County of Hot Springs, 790 P.2d 663, 672 (Wyo.1990) (citations omitted)).

[¶ 13] We review determinations concerning requests for an award of attorney fees by applying an abuse of discretion standard. Cowardin v. Finnerty, 994 P.2d 335, 337 (Wyo.1999) (citing, Johnston v. Stephenson, 938 P.2d 861, 862 (Wyo.1997); Goff v. Goff, 844 P.2d 1087, 1092 (Wyo.1993)). An abuse of discretion is found only when a court acts in a manner which exceeds the bounds of reason under the circumstances. In addition, the ultimate issue is whether the trial court could reasonably conclude as it did. Cowardin, at 337.

[¶ 14] We also review apportionment of costs issues for an abuse of discretion. The decision of the trial court will not be reversed absent proof of such abuse. Carlson v. Carlson, 888 P.2d 210, 216 (Wyo.1995).

DISCUSSION

Denial of the Motions for Judgment as a Matter of Law and New Trial

[¶ 15] As stated earlier, Fremont made two motions for judgment as a matter of law, the latter motion being coupled with a motion for a new trial in the alternative. Fremont contends that the evidence presented at trial results in the drawing of only one conclusion, that Jensen waived his contract claims.

[¶ 16] We have defined waiver as the intentional relinquishment of a known right that must be manifested in some unequivocal manner. Baldwin v. Dube, 751 P.2d 388, 392 (Wyo.1988). “While the necessary intent for waiver may be implied from conduct, the conduct should speak the intent clearly.” Murphy v. Stevens, 645 P.2d 82, 93 (Wyo.1982) (citing Bankers Trust Co. v. Pacific Employers Ins. Co., 282 F.2d 106 (9th Cir.1960), cert. den. 368 U.S. 822, 82 S.Ct. 41, 7 L.Ed.2d 27 (1961)). In addition, we have recognized that the three elements of wavier are: 1) an existing right; 2) knowledge of that right; and 3) an intent to relinquish it. Jackson State Bank v. Homar, 837 P.2d 1081, 1086 (Wyo.1992) (citing Ramirez v. Metropolitan Life Ins. Co., 580 P.2d 1136, 1138 (Wyo.1978)). The only element of waiver truly at issue is Jensen’s intent to waive his right to make a claim for his asserted wage guarantee. The party asserting waiver carries the burden of proving it. Murphy, at 93. Therefore, Fremont had the obligation of proving that Jensen explicitly intended to relinquish his right to payment under the contract.

[¶ 17] Fremont’s theory of waiver is based entirely on the assertion that Jensen accepted his paychecks without resigning or complaining until Fremont sued for the A/R account balance. Fremont calls attention to many instances of Jensen failing to assert that he was underpaid to support the proposition that he waived any right to claim he was shorted. In essence, Fremont contends that it is inconceivable that Jensen would have been underpaid for 22 out of 28 months and never assert his right to full payment during that time period.

[¶ 18] In particular, Fremont points to testimony that Jensen failed to complain that he had been underpaid after receiving his first check, even though his first paycheck came at a time when Jensen had not yet moved his family to Cody and Jensen had not yet closed on his house. Fremont also proffers in support of its contention Jensen’s failure to mention the shortage to Owen, Orkney, and Chuck Guschewsky, the company’s majority owner, along with Orkney’s testimony that Jensen never saved the backup documentation pertaining to his commission and A/R account charges. Fremont also directs this court to the fact that Jensen never asserted that the shortfall in wages could be offset against any amount that he owed on the A/R account. Finally, Fremont offers Owen’s testimony of Jensen’s request in May of 1997 that he needed to make at least $6,500 a month or his wife was going to move back to Denver. Nevertheless, our review of the record indicates that these matters, besides not clearly speaking to Jensen’s alleged intent to waive, are all matters in dispute.

[¶ 19] For example, we note that evidence presented by Jensen showed that Jensen and Owen were close personal friends, and that Jensen felt an obligation to help Owen with his newly acquired dealership. Jensen also testified that he didn’t ’ complain about the unpaid wages to people other than Owen because he valued his friendship with Owen and because Owen assured him that things would get better. Further, Owen asked Jensen not to discuss the monthly guarantee with others. Finally, Owen suggested that over time Jensen might become a part owner in the business. Obviously, these facts permit the drawing of more than one inference. Moreover, as previously recognized, Fremont has the applicable burden of proof with respect to the issue of intent. Murphy, 645 P.2d at 93. Therefore, it was properly left to the jury to decide which inference to utilize. Accordingly, we hold that although the evidence is conflicting, such evidence was certainly sufficient to warrant a conclusion by the jury that Jensen did not waive his contract claims.

[¶ 20] Indeed, even if we were to expressly disregard .Jensen’s testimony, we would not find waiver. A thorough explanation of “intent to waive” is given in 28 Am.Jur.2d Estoppel and Waiver § 209 (2000). This section explains, “mere silence is no waiver unless there is an obligation to speak, or if the silence or inaction is for so long a period as to show intention to yield a known right” (footnotes omitted). We cannot point to a single instance where we have held that mere silence and delay in asserting a claim without more constitutes the unequivocal manifestation of intent required for a claim of waiver. To the contrary, we have held that simply failing to commence an action sooner does not mean that a plaintiff waives any right that he had. Flygare v. Brundage, 76 Wyo. 350, 302 P.2d 759, 764 (1956). As stated above, Jensen offered a wide range of reasons why he did not earlier commence an action against Fremont.

[¶ 21] Furthermore, a portion of Jensen’s claim was brought under the wage act for wages due. See Wyo. Stat. Ann. § 27-4-507 (LexisNexis 2001). In NL Indus., Inc. v. Dill, 769 P.2d 920, 925 (Wyo.1989), we indicated that the interpretation of wage act sections must be in pari matena to synthesize the common purpose and intent regarding the collection of unpaid wages. Pursuant to § 24-4-507, an employer must fully pay the wages provided by contract, and payment of any lower amount is unlawful. An employee that sues for wages upon termination and establishes in court the amount justly due is also provided with the right to eighteen percent interest, attorney fees, and all costs of suit. Wyo. Stat. Ann. § 27-4-104(b) (LexisNexis 2001). This statute surely manifests the importance of the right to the prompt, full payment of wages.

[¶ 22] Finally, other jurisdictions have held that waivers of statutory rights are not favored. Hoehne v. Sherrodd, Inc., 205 Mont. 365, 668 P.2d 232, 235 (1983); Holden & Martin Lumber Co. v. Stuart, 118 Vt. 286, 108 A.2d 387, 389 (1954); Worley v. Johnson, 60 Fla. 294, 53 So. 543, 545 (1910). Further, 28 Am.Jur.2d Estoppel and Waiver § 214 (2000) explains that statutory rights should ordinarily be waived only by clear affirmative words or actions. We have held that a person may not generally waive &• statutory or constitutional right enacted for the benefit of that person if public interests are jeopardized. Taylor v. State, 612 P.2d 851, 861 (Wyo.1980). Public interests are clearly involved here. To hold that remaining at a job when not paid what you are owed waives a right to assert a statutorily given right defies common sense. A person getting less than the agreed wage should not have to affirmatively object to an employer that might fire them in order to benefit from the rights provided by the wage statute.

[¶ 23] Viewing the evidence in the light most favorable to the successful party and giving that party the benefit of all reasonable inferences that may be drawn from the evidence, we hold that the district court did not err in denying the motions for judgment as a matter of law. For the same reasons, we likewise hold that the district court’s denial of the motion for a new trial was not an abuse of discretion. Again, there was sufficient evidence to find that there had been no waiver of claim.

Jury Instruction Issues

[¶ 24] Fremont argues that the waiver instruction given by the trial court misled and confused the jury. The waiver instruction offered by Fremont was identical to an Arizona Civil Pattern Jury Instruction. The instruction as offered by Fremont read:

A party to a contract may waive the other party’s duty to perform. “Performance” refers to what a party agreed to do as his part of the contract.
Waiver is an express, voluntary, and intentional relinquishment of a known right, or it is conduct that shows an intentional relinquishment of that right.
A waiver may be expressly stated by a party, or it may be implied by or inferred from actions taken by a party that are inconsistent with an intention to assert a particular contractual right.
Similarly, by knowingly and unconditionally accepting defective performance, a party has waived any objection to it.
(b) It shall be unlawful for any employer to pay to any employee a lower wage, salary, or compensation than that provided for or agreed upon by (1) a collective bargaining agreement; (2) a contract between the employer or employee.
If Defendant waived a promised performance, then the Plaintiff is no longer bound to perform on that promise and Defendant is not entitled to damages for that particular non-performance.
Plaintiff has the burden of proving waiver by preponderance of the evidence.

The trial court modified the instruction by eliminating the italicized portions above. Fremont does not complain about the language actually contained in the subject in-sti’uction. Rather, Fremont argues that the two paragraphs omitted from its proposed instruction were necessary to adequately instruct the jury.

[¶ 25] As stated in our standard of review, proper instructions should be clear declarations of pertinent law. Ormsby, 997 P.2d at 471. As we discussed above, the elements of waiver are 1) an existing right; 2) knowledge of that right; and 3) an intent to relinquish it. Jackson State Bank, 837 P.2d at 1086. All these elements are present in the instruction as given. Furthermore, the omitted language was merely duplicative. Specifically, when looking at the first italicized paragraph, it essentially restates the immediately preceding paragraph, i.e., that waiver can be express or it may be conduct that shows an intentional relinquishment of a known right.

[¶ 26] During deliberations the jury asked, “What constitutes waiver of rights?” Fremont would have us believe that this question shows that the instruction was misleading. However, we cannot say that Fremont has demonstrated that the instruction misled or confused the jury. The duty of the trial court with regard to instructions at the close of evidence and argument is different than its duties upon receiving jury questions during deliberations. Matter of CH, 783 P.2d 155, 159 (Wyo.1989). The trial court’s denial of further instruction during deliberation does not automatically amount to reversible error. The mere fact that the jury is interested in the definition of terms or more extensive explanation does not mean that the trial court must give further instruction or that there is an error in the original instruction. In re Matter of CH, 783 P.2d. at 160. See also Britton v. State, 643 P.2d 935, 939 (Wyo.1982).

[¶ 27] The instruction as proposed might have been more beneficial to Fremont’s case, but the fact that an instruction may have been more precisely drafted or drafted in a way more favorable to a party does not warrant reversal for a new trial. Betts v. Crawford, 965 P.2d 680, 686 (Wyo.1998) (citing State Farm Mut. Auto. Ins. Co. v. Shrader, 882 P.2d 813, 832 (Wyo.1994)). We hold that the district court did not err in giving the instruction pertaining to contract waiver as modified because it was a comprehensive, balanced, and fundamentally accurate statement of the law. Betts, at 686.

Denial of Statutory Remedies

[¶ 28] Jensen contends that the trial court erred by refusing to award the statutory remedies allowed by Wyo. Stat. Ann § 27-4-104 (LexisNexis 2001). That statute reads:

(a) Whenever an employee quits the service or is discharged, the employee shall be paid whatever wages are due him in lawful money of the United States of America, or by check or draft which can be cashed at a bank, within five (5) working days of the date of termination of employment. The employer may offset from any monies due the employee as wages, any sums due the employer from the employee which have been incurred by the employee during his employment. This section does not apply to the earnings of a sales agent employed on a commission basis and having custody of accounts, money or goods of his principal where the net amount due the agent may not be determinable except after an audit or verification of sales, accounts, funds or stocks.
(b) Whenever an employee who has quit or has been discharged from service has cause to bring suit for wages earned and due, and shall establish in court the amount which is justly due, the court shall allow to the plaintiff interest on the past due wages at the rate of eighteen percent (18%) per annum from the date of discharge or termination, together with a reasonable attorney fee and all costs of suit. Prosecution of a civil action to recover unpaid wages does not preclude prosecution under W.S. 27-4-105.

[¶ 29] Generally, in Wyoming attorney fees are the responsibility of each party. These fees are only recoverable from the opposing party when expressly provided for by statute or contract. Ahearn v. Tri-County Federal Savings Bank, 954 P.2d 1371, 1373 (Wyo.1998). In this case, the relevant statute, § 27-4-104, allows for the payment of reasonable attorney fees when an employee “shall establish in court the amount which is justly due ” (emphasis added).

[¶ 30] Jensen was awarded contract damages, but he did not establish that any or all of these contract damages amount to wages justly due. At trial, Jensen presented evidence consistent with amounts that he asked for in his closing arguments. In closing argument, Jensen’s attorney requested $32,592.44 for lost wages, $1,053.20 for the move from Denver to Cody, $2,087.52 for the move from Cody back to Denver, $10,928 for the loss on the sale of his home in Denver prior to moving to Cody, and $19,494 for loss on the sale of his home in Cody after he moved back to Denver. Thereafter, the jury awarded a lump sum of $20,496.

[¶ 31] Clearly, Jensen was seeking contract damages above and beyond past due wages, as the damages related to losses on the sale of his homes or moving expenses after Jensen resigned from Fremont do not qualify as wages in accordance with the wage statute. Proceedings that are outside the scope of the wage claim statute, although related to employment, do not allow for recovery of attorney fees. NL Indus., Inc. v. Dill, 769 P.2d 920, 926 (Wyo.1989). Moreover, in NL Indus, we found that expenses incurred in defending a separate suit brought by the employer will not support an award of attorney fees. Id. In Scott v. Fagan, 684 P.2d 805, 812 (Wyo.1984), we determined that when a party failed to establish in court that wages were justly due, he cannot recover attorney fees pursuant to § 27-4r-104. It is pure speculation to consider that the contract damages awarded in Jensen’s favor were exclusively wages covered under the wage payment statute. Jensen failed to present any evidence to the district court which clarified this issue.

[¶ 32] Additionally, the jury was given a special verdict form prior to deliberation. This form did not provide for a segregation of damages pertaining to wages from any non-wage contract losses, and Jensen did not object to the use of this form. Jensen knew from the date of asserting his counterclaim that he ultimately would be asking for an award of attorney fees. It would have been simple enough for Jensen to request that these claims be separated on the verdict form. Had Jensen done so, wages justly due would have been established for the court.

[¶ 33] Furthermore, even if we were to speculate that the damage award was comprised entirely of back due wages, Jensen would still not have met his requisite burden of proof. Jensen’s submitted evidence for an award of attorney fees combined all wage and non-wage claims. “This Court has repeatedly held that segregation of fees between multiple clients and/or multiple claims is required when it is possible.” Cline v. Rocky Mountain, Inc., 998 P.2d 946, 952 (Wyo.2000) (citing Rocky Mountain Helicopters, Inc. v. Air Freight, Inc., 773 P.2d 911, 925 (Wyo.1989); Miles v. CEC Homes, Inc., 753 P.2d 1021, 1027 (Wyo.1988)). Implicit in this directive is the requirement that a party must show segregation is impossible before he may recover for claims for which there is no authorization of fee shifting. Jensen made no attempt to show that segregation of the fees for each claim was impossible. As the district court recognized, wages justly due and the amount spent on each claim were never established. Under these circumstances, it was not an abuse of the district court’s discretion to deny recovery of statutory attorney fees.

[¶ 34] Jensen also contends that the district court erred in denying each of the remedies allowed by the statute because the claim was unliquidated. One of the district court’s stated reasons for denying the claim was “The Jensen claim was unliquidat-ed.” While the statute does not explicitly require a liquidated claim, as stated previously, the statute does require that the remedies be provided upon establishment of wages justly due. Damages are liquidated if they are certain or by computation made certain. Blittersdorf v. Eikenberry, 964 P.2d 413, 416 (Wyo.1998). Here, the amount asserted by Jensen is unliquidated in the sense that we are uncertain as to what the figure for wages justly due is. For instance, according to the statute eighteen percent interest is to be applied to past due wages from the date of discharge. Wyo. Stat. Ann. § 27-4-104(b). In this case, the amount to which interest may be applied cannot be calculated with a simple mathematical calculation. Therefore, the claim of Jensen is unliquidated because uncertainty still exists as to the exact amount of wages past due. Hence, it was not an abuse of discretion to deny the award of interest to Jensen in these circumstances.

[¶ 35] Finally, costs were unknown at common law. Costs, therefore, were never awarded to either party. Costs may only be recovered if authorized by statute and then may be awarded only to parties to the litigation in amounts supported by evidence as having been incurred and reasonable. Bi-Rite Package, Inc. v. District Court of Ninth Judicial Dist. of Fremont County, 735 P.2d 709, 712 (Wyo.1987). Again, the applicable statute provides for “all costs of suit,” to be awarded, but as we look to the plain language of the statute, we note that the suit referred to is the suit for wages earned and due. As indicated previously, this suit encompassed more than simply wages earned and due.

[¶ 36] We have the same problem with Jensen’s request for an award of costs as his request for an award of attorney fees. Besides not establishing the amount of wages justly due, Jensen has not segregated the costs associated with the wage claim from those associated with non-wage claims. Again, it was not an abuse of discretion for the district court to deny all costs of suit in this circumstance.

CONCLUSION

[¶ 37] Given those reasons set forth above, the judgment of the district court is affirmed.

       Chief Justice at time of expedited case conference.

      . Owen argues that the agreement referenced in the letter was for a salesman position that Jensen eventually rejected only to later accept a position as sales manager, and the $8,000 was simply an estimate of what Jensen would make and that Jensen would be paid 6% commission. Jensen argues that the only agreement that was ever reached was for the sales manager position.

      . In relevant part, Wyo. Stat. Ann. § 27-4-507(b) (LexisNexis 2001) provides:

      . We have held that relocation benefits that are promised to an employee as a fringe benefit qualify as wages. NL Indus., Inc. v. Dill, 769 P.2d 920 (Wyo.1989). Here, the only moving expenses Jensen may have been promised appear to be the moving expenses related to the move to Cody. However, this issue was not addressed in depth at trial.

      . For example, drafting a power of attorney for Margaret Jensen, calling the title company for escrow, and drafting, revising, and finalizing trial exhibits regarding non-wage related claims do not relate to wages.


source: Caselaw Access Project

license: Public Domain

text:
    2002 WY 174
    Steven JOYNER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-87.
    Supreme Court of Wyoming.
    Nov. 27, 2002.

      Kenneth M. Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Tina N. Kerin, Assistant Appellate Counsel; and Ryan R. Roden, Assistant Public Defender, Representing Appellant. Argument by Mr. Roden.
    Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Theodore E. Lauer, Faculty Director, Prosecution Assistance Program; and Tari L. Elam, Student Intern., Representing Appellee. Argument by Ms. Elam.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   LEHMAN, Justice.

[¶ 1] Steven Joyner (Joyner) appeals from a conviction of felony stalking in violation of Wyo. Stat. Ann. § 6-2-506 (LexisNex-is 2001). Joyner pled guilty, but utilized W.R.Cr.P. 11(a)(2) to reserve his right to appeal the district court’s denial of his Motion to Dismiss. Joyner contends that the criminal case should have been dismissed because the order of protection he was accused of violating was entered without affording him an adequate opportunity to appear and be heard. We reverse and remand.

ISSUES

[¶ 2] Joyner advances three issues on appeal:

I. Did the trial court err in denying appellant’s motion to dismiss?

II. Was appellant denied his right to be present at a critical stage of the proceedings?

III. Did the prosecutor commit prosecu-torial misconduct when he knowingly prosecuted appellant for violation of an invalid order?

FACTS

[¶ 3] On March 30, 2000, Joyner went to the United Medical Center (UMC) in Cheyenne seeking adjustment to his epilepsy medication. For reasons not explained in the record, UMC detained Joyner, and proceedings were commenced for his involuntary hospitalization under Wyo. Stat. Ann. §§ 25-10-101 through 25-10-305 (LexisNexis 2001). UMC detained Joyner for five days, during which time he was not allowed to leave and had no access to mail or a telephone. UMC released Joyner on April 4, 2000, after a district court commissioner found that he was not mentally ill.

[¶ 4] Joyner is divorced from Vickie Hitt (Hitt). On March 31, 2000, Hitt obtained from the Circuit Court of the Eighth Judicial District, Goshen County, in Torrington an Ex Parte Order of Protection against Joyner. This temporary order and a summons were served on Joyner, “personally and in person,” at UMC on the same date. At the time of service, Joyner was in a room with a nurse and a guard. The deputy sheriff laid the papers on the table and told Joyner it was a summons for him to appear in court. Joyner read the first paragraph of the summons, which indicated the date, time, and location of a court hearing. The nurse then escorted Joyner from the room and told him not to worry, that the matter would be taken care of. Joyner did not know the papers contained an order of protection, and he was never given an opportunity to read the papers, but he did observe that the court hearing was set in Torrington.

[¶ 5] On April 3, 2000, while Joyner was still at UMC, the Goshen County Circuit Court held the hearing noticed in the summons. Joyner, of course, was unable to attend. That same evening, while still at UMC, Joyner was served “personally and in person” with a copy of the Order of Protection issued as a result of that hearing. The nurse took the papers without giving Joyner a chance to read them.

[¶ 6] After he was released from UMC, Joyner made no attempt to contact the Gosh-en County Circuit Court about the papers with which he had been served. Between May 1 and May 5, 2000, nearly a month after Joyner’s release from UMC, Joyner engaged in a course of conduct that resulted in his being charged with stalking his ex-wife.

STANDARD OF REVIEW

[¶ 7] Joyner’s claims of error in this case contain both issues of fact and of law. As we have stated numerous times, the district court’s factual findings are reviewed under a clearly erroneous standard. However, constitutional issues are questions of law that we review de novo. Taylor v. State, 7 P.3d 15, 19 (Wyo.2000); see also Pope v. State, 2002 WY 9, ¶ 14, 38 P.3d 1069, ¶ 14 (Wyo.2002).

DISCUSSION

Denial of the Motion to Dismiss

[¶ 8] Joyner based his motion to dismiss on a challenge to the validity of the Order of Protection given his inability to attend and be heard on the matter. Due process requires the State to “prove every element of a criminal offense beyond a reasonable doubt.” Krucheck v. State, 671 P.2d 1222, 1224 (Wyo.1983) (citing Sandstrom v. Montana, 442 U.S. 510, 512, 99 S.Ct. 2450, 2453, 61 L.Ed.2d 39, 43 (1979)). The criminal offense charged here is stalking under Wyo. Stat. Ann. § 6-2-506 (LexisNexis 2001). Generally, stalking is a misdemeanor. If, however, the offense is committed in violation of an order of protection, the offense becomes a felony punishable by up to ten years in prison. Implicit in this version of felony stalking is the requirement that the order of protection be valid at the time of the alleged stalking. It is clear, following-hearing, that the State cannot prove the order of protection was valid.

[¶ 9] Both the United States and Wyoming constitutions provide that no person may be deprived of life, liberty, or property without due process of law. U.S. Const, amend. XIV, § 1; Wyo. Const, art. 1, § 6. To be constitutionally valid, the court issuing the order must have acted in a manner consistent with due process. Due process requires that the litigants be afforded both notice and a meaningful opportunity to be heard. Murray v. Murray, 894 P.2d 607, 608 (Wyo.1995) (citing Sandstrom v. Sandstrom, 880 P.2d 103, 106 (Wyo.1994)).

[¶ 10] As stated in the facts, Joyner was involuntarily detained in a psychiatric ward at UMC, apparently pursuant to Wyo. Stat. Ann. § 25-10-109 (LexisNexis 2001). UMC placed Joyner in a “lock down” facility from which he could not leave. UMC deprived Joyner access to a telephone and the mails. Importantly, at hearing, the prosecutor conceded that UMC acted as an arm of the State in detaining-Joyner. While UMC detained Joyner, Joyner’s ex-wife .filed a petition in Goshen County Circuit Court requesting a Stalking Order of Protection, and the circuit court issued an Ex Parte Order of Protection. That same day, a Laramie. County sheriffs officer served Joyner at UMC with the petition, the Ex parte Order of Protection, and a summons to appear for a hearing. Joyner was never given an opportunity to read the papers. On April 3, 2000, while Joyner was still in “lock down,” the order of protection was entered. UMC discharged Joyner on April 4, 2000, pursuant to an order from a Laramie County District Court Commissioner.

[¶ 11] Although the circuit court, by virtue of service, had personal jurisdiction over Joyner at the time it entered the order of protection, that fact, by itself, does not resolve the question of whether Joyner was afforded due process of law. The evidence recited above establishes that the order of protection was entered without affording Joyner a meaningful opportunity to be heard thus depriving Joyner due process of law.

[¶ 12] We find persuasive the four cases trial counsel for Joyner cited to support his contention that he was not afforded a meaningful opportunity to be heard. A review of those cases reveals, generally, that incarcerated parties are not afforded due process when they are not permitted to participate in hearings. RPM v. State, Dep’t of Family Servs., Div. of Public Assistance & Social Sens., 917 P.2d 169, 170-71 (Wyo.1996); Tageant v. Pageant, 909 P.2d 322, 323 (Wyo.1996); Wolfe v. Wolfe, 899 P.2d 46, 47-48 (Wyo.1995); and Murray v. Murray, 894 P.2d at 608. In those cases, the incarcerated party at least had an opportunity to make a request to participate. Here, Joyner did not have the opportunity to make such a request. The holdings in those cases apply with even greater force where it is clear that Joyner, as a result of state action, had no opportunity to even make a request to participate. On these facts, we conclude Joyner was deprived of due process of law, and the protection order was thus not valid at the time of the alleged stalking.

[¶ 13] In an argument made for the first time on appeal, the State contends that Joyner’s attack on the validity of the order of protection issued by the Goshen County Circuit Court is a collateral attack upon the order. This court has consistently held that it “will not consider issues which are raised for the first time on appeal unless they are jurisdictional issues or issues of such a fundamental nature that they must be considered.” Robinson v. Pacificorp, 10 P.3d 1133, 1136 (Wyo.2000); WW Enterprises, Inc. v. City of Cheyenne, 956 P.2d 353, 356 (Wyo.1998). The collateral attack issue is not one concerning jurisdiction, and it cannot be considered by this court based on that exception to the general rule. Whether the collateral attack issue is “fundamental” we do not decide today. However, it is appropriate for us to address issues that are bound to emerge again if left unresolved. Rocky Mountain Oil & Gas Ass’n v. State, 645 P.2d 1163, 1167 (Wyo.1982); McGuire v. McGuire, 608 P.2d 1278, 1286 (Wyo.1980). Because we believe the collateral attack principles are misplaced and misapplied in this instance, we will comment on them.

[¶ 14] Collateral attack principles apply where a party is seeking to attack or “undo” a prior court order. Here, Joyner did not seek to undo the order of protection; he sought to preclude the order from being used in a later prosecution. A similar collateral attack argument was swiftly rejected in the Washington case of State v. Marking, 100 Wash.App. 506, 997 P.2d 461, 463 (2000) review denied 141 Wash.2d 1026, 11 P.3d 825 (2000), where the court wrote:

Because Marking did not challenge the no-eontact order when the district court issued it, the State argues that his objection to it now is an improper collateral attack. We disagree.
The validity of a protective order is an implicit element of the crime of violation of such order. See City of Seattle v. Edwards, 87 Wash.App. 305, 308, 941 P.2d 697 (1997) (discussing protective order issued pursuant to RCW 26.50.060(2)). Notwithstanding Marking’s failure to challenge the order in district court, the State bore the burden at trial of proving the validity of the order beyond a reasonable doubt. Edwards, 87 Wash.App. at 308, 941 P.2d 697.
Thus, the determinative issue here is not the validity of the order per se, but rather whether the State proved beyond a reasonable doubt that the order was valid. Edwards, 87 Wash.App. at 307-309, 941 P.2d 697.

See also State v. Schultz, 106 Wash.App. 328, 25 P.3d 436, 438 (2001).

[¶ 15] In addition to the well-reasoned discussion above, we emphasize that Joyner did not seek to challenge or undo the protective order itself. Instead, he simply sought to prevent the use of the protection order in support of the felony prosecution. This he can do. In different circumstances, several Wyoming cases exemplify that a defendant can challenge the use of a prior order or conviction in later proceedings. See Brisson v. State, 955 P.2d 888, 892 (Wyo.1998) (“We hold that Brisson should have been provided counsel for his first conviction and that his uncounseled conviction cannot be used to enhance his current charge to a felony.”); Gunderson v. State, 925 P.2d 1300, 1304 (Wyo.1996) (“Appellant argues that, although the Nebraska and South Dakota convictions were classified as felonies in those states, they would have been punished as misdemeanors in Wyoming. He contends, therefore, that the convictions should not have been used to enhance his punishment under the habitual criminal statute.”); Johnston v. State, 829 P.2d 1179, 1180 (Wyo.1992) (“Appellant attacks collaterally his prior convictions used for enhancement. He does not deny having been convicted of the crimes. He asserts, however, that two of the prior convictions were defective and should not have been used against him in this enhancement proceeding.”).

[¶ 16] Even if Joyner’s attack on the order of protection can be considered a collateral attack, those principles are misapplied in this case. As a general rule, collateral attacks on judgments are not allowed. This general rule, and an exception to it, are well stated in 50 C.J.S. Judgment § 499 (1997):

Generally, a judgment rendered by a court having jurisdiction of the parties and the subject matter, unless reversed or annulled in some proper proceeding, is not open to contradiction or impeachment, in respect of its validity, verity, or binding effect, by parties or privies, in any collateral action or proceeding. Even if the judgment is voidable, that is, so irregular or defective that it would be set aside or annulled on a proper direct application for that purpose, it is well settled as a general rule that it is not subject to collateral impeachment as long as it stands unre-versed and in force.
However, under an exception to the general rule, a judgment is subject to collateral attack if it is void. Thus, a judgment which is absolutely, void is entitled to no authority or respect, and therefore may be impeached at any time, in any proceeding-in which it is sought to be enforced or in which its validity is questioned, by anyone with whose rights or interests it conflicts.

(Footnotes omitted.) A judgment obtained in violation of due process is void. Matter of Adoption of MSVW, 965 P.2d 1158, 1163 (Wyo.1998); Interest of WM, 778 P.2d 1106, 1110 (Wyo.1989). Thus, such a judgment may be collaterally attacked.

[¶ 17] To avoid confusion, we seek to clarify the extent of this opinion. Respect for the law and the finality of judgments are valued principles of this court. Nothing in this opinion should be construed as disregard for that principle. The presumption of validity still attaches to prior orders. Accordingly, the State does not have the initial burden of proof related to the validity of the protection order. This initial burden of production is placed on the defendant.

[¶ 18] Our previous discussions of the “burden of proof’ have shown that the phrase “burden of proof’ encompasses two distinct legal doctrines: the burden of persuasion and the burden of production. Bando v. Clure Bros. Furniture, 980 P.2d 323, 330 (Wyo.1999) (citing Casper Iron & Metal, Inc. v. Unemployment Ins. Comm’n of Dep’t of Employment, 845 P.2d 387, 393 (Wyo.1993)). In Bando we further explained the two legal doctrines as follows:

The burden of persuasion, which normally becomes operative only after all the evidence is submitted, attaches to the party that runs the risk of nonpersuasion. This means if the party with the burden of persuasion has not sustained his burden, that party must fail. The related term, burden of production, is also known as the burden of producing evidence or going forward with the evidence. The burden involves the obligation of a party to present, at the appropriate time, evidence of sufficient substance on the issue involved to permit the fact finder to act upon it. Unlike the burden of persuasion, the burden of production shifts during the presentation of evidence.

Id. (citation omitted).

[¶ 19] With these principles in mind, we hold that the following procedure should apply when a defendant attacks the validity of the protection order. The defendant has the burden of production for making a prima facie showing that the order of protection was entered in violation of his constitutional rights. Should the defendant meet this burden of production, then the burden shifts and the prosecution must establish, beyond a reasonable doubt, that the order was constitutionally obtained. The trial court should determine such questions of law at a pretrial hearing.

[¶20] The procedure outlined above is similar to the procedure for prior criminal convictions that become the basis for later habitual criminal status under Wyo. Stat. Ann § 6-10-201 (LexisNexis 2001). In those proceedings the following rules apply to the burden of production:

In Evans [v. State, 655 P.2d 1214 (Wyo.1982)], we indicated that a defendant has the burden of proof when asserting an affirmative defense (such as invalidity of an underlying conviction) in an habitual criminal proceeding. Evans, at 1222. Since then, we have refined our burden of proof standard in the context of a conviction of an habitual traffic offender. In City of Laramie v. Cowden, 777 P.2d 1089, 1091 (Wyo.1989), we stated that the defendant mounting a constitutional challenge to an underlying conviction in an habitual traffic offender proceeding must make a prima facie showing that one or more of his underlying convictions was not obtained in accordance with his constitutional rights. Once the defendant makes this showing, the prosecution has the burden of establishing, by a preponderance of the evidence, that the conviction was constitutionally obtained. We now hold this same standard applies to proceedings under the habitual criminal statute.

Johnston v. State, 829 P.2d 1179, 1180-81 (Wyo.1992).

[¶ 21] Upon an examination of the facts, we see that the above-mentioned process is essentially what happened in this case. Joyner mounted a constitutional chállenge to the underlying protection order, and the State was unable to prove the validity of that order beyond a reasonable doubt. Therefore, the trial court erred in denying Joyner’s motion to dismiss.

[¶ 22] Given this resolution, there is no need to address Joyner’s remaining issues.

CONCLUSION

[¶ 23] We conclude that the district court erred in denying Joyner’s motion to dismiss. We, therefore, reverse and remand this matter to the district court with instruction to (1) allow Joyner to withdraw his conditional guilty plea; (2) dismiss the felony information; and (3) remand the matter to the circuit court for further proceedings on the misdemeanor stalking charge.

      . The purpose of the hearing was to determine whether the ex parte order should be extended for the three months allowed by statute and to establish the terms of any order so extended. See Wyo. Stat. Ann. §§ 7-3-508 through 7-3-510 (LexisNexis 2001).

      . The parties stipulated at the hearing on the Motion to Dismiss that the Goshen County Circuit Court Judge was aware during the April 3 hearing that Joyner was being involuntarily detained at UMC in Cheyenne.

      . Wyo. Stat. Ann. § 6-2-506(b) states:
      Unless otherwise provided by law, a person commits the crime of stalking if, with intent to harass another person, the person engages in a course of conduct reasonably likely to harass that person, including but not limited to any combination of the following....

      . Wyo. Stat. Ann. § 6-2-506(e) states:
      A person convicted of stalking under subsection (b) of this section is guilty of felony stalking punishable by imprisonment for not more than ten (10) years, if:

      (iv) The defendant committed' the offense of stalking in violation of a temporary or permanent order of protection issued pursuant to W.S. 7-3-508 or 509, or pursuant to a substantially similar law of another jurisdiction. '

      . As applied to Wyo. Stat. Ann. § 6-2-506(e)(iv), this court has never decided whether the violation of such order is a sentencing enhancement provision or an element of the offense. It looks to be an element of the offense. However, even if it is merely a sentencing enhancement provision, the State still bore the burden to prove that fact beyond a reasonable doubt. Besides the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be proved beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). As a protection order is not a prior conviction, we impose a reasonable doubt standard rather than the preponderance of the evidence standard applicable to prior criminal convictions that become the basis for later habitual criminal status.

      . Lest there be any confusion, as noted above, the State must establish, beyond a reasonable doubt, that the order of protection is valid.


author: EASTAUGH, Justice.

text:
    Gerald BALL, Albert Newton Ball, and Albert Ball, Jr., Appellants, v. BIRCH, HORTON, BITTNER AND CHEROT, a professional corporation, and Hal R. Horton, individually, Appellees.
    No. S-10015.
    Supreme Court of Alaska.
    Sept. 27, 2002.
    Rehearing Denied Dec. 10, 2002.

      R. Eldridge Hicks, Hicks, Boyd, Chandler & Falconer, Anchorage, for Appellants.
    Patrick B. Gilmore, Atkinson, Conway & Gagnon, Anchorage, for Appellees.
    Before: FABE, Chief Justice, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

EASTAUGH, Justice.

I. INTRODUCTION

A law firm’s clients sued the firm. They claimed, among other things, that the firm was negligent in negotiating a commercial transaction and preparing transactional documents. The law firm moved for complete summary judgment; it submitted in support an expert’s report that addressed only the document-preparation claim. When the plaintiffs repeatedly failed to produce expert opinions to oppose the firm’s summary judgment motion or support their malpractice claims, the superior court granted the firm complete summary judgment. We discern no error as to the document-preparation claim because plaintiffs did not preserve any genuine factual dispute as to that claim. But as to all claims the firm’s expert did not address, we reverse and remand because the firm did not make out a prima facie showing that it was entitled to summary judgment as to those claims.

II. FACTS AND PROCEEDINGS

A. The Transaction

Gerald Ball, Albert Newton Ball, and Albert Ball, Jr. (the Balls) sought to sell their cargo airline businesses and began negotiations with a prospective purchaser in early 1991. The purchaser tendered two $200,000 checks but they were returned for insufficient funds. The checks’ return and other circumstances raised a question about whether to proceed with the sale or terminate discussions with the would-be buyer. The Balls retained the Anchorage law firm of Birch, Horton, Bittner, and Cherot to continue negotiations with the prospective buyer and to draft documents for the sale of the businesses. Attorney Hal Horton of that firm was the Balls’ lead lawyer.

According to their sworn discovery responses they later provided, two of the Balls had doubts about the “deal” and had wanted to end negotiations, but Horton insisted on continuing. After the transactional documents were executed, the purchaser defaulted on the first payment and the Balls foreclosed on what property they could.

B. The Lawsuit

The Balls filed a malpractice complaint against Horton and the law firm (collectively “Birch, Horton” or the “law firm”) in October 1997. The complaint alleged that Birch, Horton “failed to meet the standard of care of the legal profession ... in negotiating the sale [of] the Stock and in drafting the documents for the sale of the Stock in the Corporations.” The complaint prayed for damages exceeding $5,000,000.

The attorney who filed the Balls’ malpractice lawsuit became incapacitated in the summer of 1999 and all of his cases, including the Balls’ lawsuit, were referred to trustee counsel for some months. The original lawyer briefly resumed representing the Balls in early 2000.

Birch, Horton moved for summary judgment in January 2000 and supported its motion with a May 1999 report prepared by its expert, Fairbanks attorney Charles E. Cole. Birch, Horton served the report on the Balls in May 1999, and again served the report on them with its January 2000 summary judgment motion. We discuss the report in Part III.B. The law firm also filed a separate motion for partial summary judgment on the issue of punitive damages.

The Balls’ original litigation lawyer, having resumed representing the Balls in early January 2000, moved to continue the trial and extend the time to oppose summary judgment. He claimed in his supporting memorandum that he had “retained a local attorney to act as the expert in the case,” but learned after he returned to Anchorage that this attorney “had discovered a conflict of interest with the defendant law firm” and would no longer serve as an expert. He asked for additional time in which to engage another expert to respond to the law firm’s pending summary judgment motions.

The Balls’ litigation lawyer then fell ill again; their present litigation attorney replaced him in early May 2000.

It is undisputed that the Balls failed to comply with a number of discovery deadlines after they filed suit. Most important among these were several deadlines for providing expert reports; . at least one of those deadlines had passed before the law firm moved for summary judgment in January 2000.

At a June 1, 2000 status conference, the court, the Balls’ present counsel, and Birch, Horton’s defense attorney agreed that the Balls’ counsel’s “first priority” would be to secure an expert and obtain an expert report. Birch, Horton’s attorney explained that the January 2000 summary judgment motion “was just filed in desperation to get some sort of response to something, and just based on the fact that there have been two deadlines that have come and gone for producing expert reports, and you can’t have an attorney malpractice claim without one.” The court then vacated the July 24, 2000 trial date.

At a July 13, 2000 status conference, the Balls’ present attorney acknowledged the importance of providing an expert report. He represented that he had contacted an expert, a lawyer in a prominent New York law firm, and that the expert needed more time to review the file and prepare a report. The Balls’ attorney identified the expert by name and asked for at least another seventy-five days in which to provide the expert’s report. The court suggested obtaining in thirty days a “more or less summary report from the expert” about the theory supporting the Balls’ case and the Balls’ attorney agreed to do so. The court then imposed an August 15 deadline for the report. As of mid-July, at least one trial date had already been vacated and there were seven unanswered defendants’ motions, including motions to compel and a motion to disclose damages.

On August 15 the Balls filed their memorandum opposition to Birch, Horton’s summary judgment motion, but submitted no report from an expert. The Balls argued that the Cole report did not justify complete summary judgment because it only addressed the document-preparation claim and not them other claims. They also asserted that the claimed negligence was ascertainable by a jury of “ordinary education,” obviating the need for a plaintiffs’ expert. Alternatively, the Balls claimed that their delay in producing the expert’s report had not harmed the law firm and that they needed thirty more days under Alaska Civil Rule 56(f) to secure an expert’s report. They contended that the following circumstances justified the additional thirty days: (1) no trial date was then set; (2) the Balls’ sworn discovery responses “manifest a prima facie case”; (3) the Balls’ lawyer had exerted “a prodigious effort” in the past two and a half months; (4) the Balls’ lawyer could “certify under Rule 11” that the lawsuit was warranted by existing law; (5) diligent efforts to obtain a preliminary expert report by August 15 had failed through no fault of the Balls, their attorney, or the “worthiness” of the case; and (6) the law firm had suffered no prejudice because there was no trial date.

The superior court issued an order on August 22, 2000 setting the trial for April 9, 2001.

In a late August 2000 letter to defense counsel, the Balls’ attorney revealed that, as of the July 13, 2000 status conference, he had not in fact spoken with the New York lawyer whom he had identified at the July 13, 2000 status conference as the Balls’ expert. The same letter revealed that the Balls’ lawyer had received a message from the New York attorney on July 21 stating that he felt his law firm did not have the required expertise. The Balls’ lawyer also revealed that he had relied on the representation of the Balls’ original lawyer that the New York attorney would serve as an expert, but that current counsel had not contacted the identified expert until after the July 13 conference. Birch, Horton then supplemented its summary judgment motion with arguments asserting that the Balls should not be granted more time, given their failure to produce the identified expert, the misrepresentations of the Balls’ counsel, and their lack of diligence.

By order issued September 20, 2000, the superior court granted Birch, Horton’s summary judgment motion. The superior court reasoned that an expert opinion was necessary to prove breach of duty in this case, that the Balls had failed to provide one after having been given “ample opportunity” and “extension after extension,” and that summary judgment was appropriate because the firm’s expert’s report was uncontradicted. The order also stated: “The plaintiffs’ failure to comply with this court’s orders and the defendant’s reasonable requests for compliance precipitates summary judgment.”

In their reconsideration motion, the Balls again argued that the Cole report was too limited to justify complete summary judgment because it only addressed the document-preparation claims and not the negligent negotiation claims alleged in the Balls’ sworn interrogatory answers. They also claimed that summary judgment was inappropriate because they had now obtained and produced an expert report, because discovery iyas still open, and because the trial date of April 2001 was then still six months away. It appears that the Balls first served their expert’s report on September 28, 2000.

The superior court denied the motion for reconsideration. The denial order set out the limited grounds for reconsideration and held that the Balls failed to allege circumstances justifying reconsideration. The order stated that “Mr. Cole’s opinion address [ed] each and every claim of malpractice raised by Plaintiffs in their Disclosures,” and that “plaintiffs are using the motion to reconsider to seek yet another extension of time for presentation of ‘additional evidence on the merits.’ ” The court entered final judgment against the Balls and awarded costs and enhanced attorney’s fees against them.

The Balls appeal the grant of summary judgment and the award of attorney’s fees.

III. DISCUSSION

A. Standard of Review

We review a grant of summary judgment de novo. We affirm a grant of summary judgment if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. We draw all reasonable inferences in favor of the non-movant.

B. Partial, but Not Complete, Summary Judgment Was Appropriate.

The Balls argue that the superior court committed two main errors in entering summary judgment against them: first, they claim that it erred by reading the report of the law firm’s expert to address all of the Balls’ liability claims rather than just the claim of negligent document preparation, and second, they claim that it abused its discretion by dismissing the entire lawsuit rather than “waiting longer” for their expert’s report because trial was “distant” and discovery was still open.

The law firm responds that summary judgment was proper because the Balls had the ultimate burden of proving that the law firm breached the standard of care, but repeatedly failed to produce any expert opinion that the law firm breached that standard. It reasons that because the Balls failed to establish breach of the standard of professional care by expert opinion, an essential element of legal malpractice claims, the law firm would have been entitled to summary judgment even had it not provided its own expert report.

Two competing propositions are at play here. The law firm relies on the first: professional malpractice plaintiffs must support their claims with expert opinion evidence of the standard of care unless the negligence alleged is sufficiently non-teehnical to be cognizable by laypersons. The Balls rely on the second: because a party moving for summary judgment must demonstrate the absence of any genuine issue of material fact as to all claims, complete summary judgment cannot be entered against the opponent if the movant only provides evidence regarding some of the claims.

Notwithstanding the Balls’ significant delays in responding to discovery and producing their expert’s report, we agree with the Balls and affirm summary judgment only as to those claims addressed by the law firm’s expert.

1. Propriety of complete summary judgment

As a general proposition, a defendant is not entitled to complete summary judgment in Alaska unless it demonstrates as to each claim against it that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. This is the rule even if the defendant’s motion addresses an element which is essential to the plaintiffs case and on which the plaintiff would ultimately bear the burden of proof at trial.

The expert report Birch, Horton submitted to support its summary judgment motion addressed only the claim of negligent document preparation. The report contained this limiting statement:

I have not been retained to express an opinion on any involvement Mr. Horton may or may not have had in the course of negotiations which led to the execution of the Stock Purchase and Sale Agreement, dated October 25, 1991, the First Amendment to Stock Purchase and Sale Agreement, dated November 19, 1991, and the related closing documents other than the light shed on Mr. Horton’s participation in those negotiations by the documents which he drafted and related correspondence.

The report expresses the general opinion that “the transaction documents drafted by Mr. Horton were prepared in conformance with the standard of care applicable to attorneys at law in Alaska in 1991.” The remainder of the report relates to particular provisions or aspects of the documents Horton prepared. The report expresses no explicit opinion concerning claims other than the document-preparation claim, and cannot be fairly read to contain implicit opinions about any other claims.

The law firm argued in the superior court that the expert’s report addressed each of the Balls’ malpractice claims. The order granting summary judgment noted that the law firm’s expert’s “testimony is uncontra-dicted.” The order denying reconsideration rejected the Balls’ argument that the firm did not provide evidence addressing their other liability theories, and stated, “Mr. Cole’s opinion addresses each and every claim of malpractice raised by Plaintiffs in their Disclosures.” But in fact, the Cole report addressed only the Balls’ document-preparation claim. It did not discuss the other liability claims the Balls had identified in their complaint, discovery responses, and summary judgment opposition. And it did not express a blanket no-fault opinion that might have encompassed all possible claims.

Because the report of the law firm’s expert did not address all of the grounds on which the Balls claimed the firm was negligent, the firm did not make out a prima facie showing for complete summary judgment on all of the Balls’ claims. Under our standard summary judgment analysis, the Balls would have had no obligation to demonstrate that a genuine factual issue existed.

The law firm argues, however, that the Balls’ complete failure to produce expert opinion evidence of any breach of professional duty makes the scope of the Cole report irrelevant; it argues that even if it had submitted no report it would have been entitled to complete summary judgment absent any expert evidence of malpractice.

The law firm founds its arguments on the proposition that professional malpractice plaintiffs must support their claims with expert opinion evidence of the standard of care unless the negligence alleged is sufficiently non-technical to be cognizable by laypersons. It cites Kendall v. State, Division of Corrections and Drake v. Wickwire in support of this general proposition. To support its assertion that the Balls’ failure to produce any expert evidence of malpractice warranted complete summary judgment, the law firm relies on cases from other jurisdictions discussing summary judgments, including cases applying the federal summary judgment standard. It also relies on two Alaska cases, Zok v. Collins and Gerber v. Juneau Bartlett Memorial Hospital,

It is not obvious why a professional malpractice defendant moving for summary judgment should be relieved of a summary judgment movant’s usual threshold duty of making out a prima facie showing addressing the claims against it. And it is not obvious why it should be permitted to place on the non-movant plaintiff the burden of proving elements of the plaintiffs case at the summary judgment stage if the defendant does not make that prima facie showing.

But this case does not require us to decide whether a professional malpractice plaintiff must submit evidence of a breach of the applicable professional standard of care in order to avoid summary judgment if the movant does not make out a prima facie showing that there was no breach. The law firm in this case did offer expert evidence in an attempt to make out a prima facie showing of lack of fault. And it argued that its expert’s report had refuted each allegation of malpractice. The superior court’s comments in denying reconsideration suggest that it accepted that argument. Moreover, unfortunate circumstances were partly responsible for the Balls’ delay in producing an expert report. Even though the Balls could not have taken their case to a jury without expert evidence establishing fault, the rescheduled trial was not to begin until April 2001, discovery had not closed, and other pretrial dates had been or would be rescheduled. Further, absent a prima facie showing that the law firm did not breach an applicable duty, the Balls’ discovery responses, including their July 2000 supplemental interrogatory answers, provided a factual framework sufficient to demonstrate to the superior court at the summary judgment stage some six months before trial that the plaintiffs’ legal malpractice claims were not on their face completely without merit. And at this stage of the proceedings, it was not yet critical that the plaintiffs had not submitted an expert opinion to support the liability theories the Cole report did not discuss. The superior court at this point had less need for an opinion addressing each theory of legal malpractice than would a jury of non-lawyers at trial.

No Alaska case compels a different result. Gerber and Kendall were medical malpractice cases in which expert advisory panel reports provided affirmative expert evidence that there was no professional breach. The plaintiffs in both cases failed to offer opposing expert evidence. They therefore failed to rebut the movants’ prima facie showings. In Zok v. Collins the legal malpractice plaintiff did not designate experts to testify at trial. After the deadlines had passed for listing witnesses, disclosing experts and their opinions, and completing discovery, the defendant moved for summary judgment and argued that the plaintiff would be unable to prove the elements of his malpractice claims requiring expert testimony. Moreover, the superior court there found that the plaintiff had made a “strategic decision” not to hire experts. In comparison, here new pretrial dates had been or were to be set and the Balls consistently expressed an intention to offer opinion evidence supporting their claims.

The law firm has identified no viable alternative ground for affirming the complete summary judgment. It does not argue that the summary judgment can be justified as a sanction. The superior court did not rely on a sanction rationale and did not make, even implicitly, findings that would have permitted a litigation-ending sanction. Finding vexatious delays and misrepresentations regarding the availability of expert testimony, the superior court awarded the law firm enhanced attorney’s fees. But these findings would not have justified litigation-ending sanctions. And, given disputes about the extent to which the plaintiffs’ earlier discovery and disclosure deficiencies were attributable in part to their incapacitated counsel, we cannot find willfulness as a matter of law on this record.

Summary judgment should not have been granted as to liability claims not addressed in the Cole report. It was therefore error to grant complete summary judgment.

2. Propriety of partial summary judgment

Because the law firm supported its summary judgment motion with expert opinion evidence that there was no merit to the Balls’ document-preparation theory, in order to avoid partial summary judgment the Balls had to demonstrate either the existence of a genuine, material fact dispute, or their need for more time to oppose the motion. The Balls, however, did not show that there were genuine fact disputes inherently rebutting the detailed opinions expressed in the Cole report. They did not offer evidence creating any factual dispute about the assumptions underlying Cole’s opinions. And they did not rebut his opinions with contrary expert opinions.

Legal malpractice plaintiffs in Alaska must support their claims with expert opinion evidence unless the negligence alleged is sufficiently non-technical to be cognizable by laypersons. The Balls’ malpractice claims were not sufficiently non-technical to be evident to laypersons. The interrogatory answers signed by Gerald Ball, a layperson, were not sufficient to create a genuine fact dispute for purposes of rebutting an expert opinion clearly expressed on a topic which required expert evidence. The Balls’ failure to offer expert opinion evidence responding to the Cole opinions is therefore fatal to the claim of negligent document preparation, unless, as they also argue, it was an abuse of discretion to grant summary judgment given a “distant” trial date and open discovery.

The Balls’ appellate briefs do not cite or rely on Civil Rule 56(f), although the Balls requested a thirty-day continuance under that rule in the superior court for the purpose of obtaining an expert report to support their claims and rebut the Cole report. We have held that requests made under Rule 56(f) should be granted freely because Rule 56(f) provides a safeguard against premature grants of summary judgment. We review for abuse of discretion the denial of a motion for a Civil Rule 56(f) continuance. But the Balls do not claim that the court denied any requested continuance. They argue instead that it should have waited “longer” for their expert’s opinion.

The record does not justify a conclusion that the superior court “abused its discretion by not waiting longer.” Notwithstanding the impediments and delay caused by the incapacity of their first litigation attorney, the Balls had adequate time to obtain expert opinions to rebut the opinions in the Cole report. That report was first served on the Balls in May 1999, and was served again in January 2000 with the summary judgment motion. The Balls’ successor counsel recognized the importance of obtaining an expert opinion supporting the Balls’ claims, and the weight the superior court placed on producing such a report. On June 1, 2000 the Balls’ lawyer told the superior court he needed “thirty or forty-five days,” and the court responded that “forty-five days is reasonable,” but warned counsel that “I need to tell you that I’m going to hold you to that.” At the July 13, 2000 hearing, shortly before the forty-five day period was to expire, the Balls’ lawyer represented, among other things, that he had conferred with the New York attorney and the court ordered counsel to produce the expert report by August 15.

On August 15 the Balls did not produce a report as ordered; instead, their August 15 memorandum moved under Civil Rule 56(f) for an additional thirty days in which to obtain a report. At an August 22 hearing, their attorney announced that a new expert had been engaged who would provide a report “within two or three weeks,” i.e., by the end of the second week of September. At the same hearing, defense counsel correctly informed the superior court that the summary judgment motion was “ripe” and that the Balls had not requested oral argument; the court stated that it would “turn it over to a law clerk.” The superior court did not expressly grant or deny the Balls’ thirty-day request or approve the Balls’ plan to submit the report the second week of September. But it did not enter summary judgment against the Balls until September 20, 2000, about a week after the requested thirty-day continuance would have expired. The Balls did not submit an expert’s report until they moved for reconsideration on September 28.

Before the court granted summary judgment, the Balls had repeatedly missed deadlines for producing their expert’s report. The reasons the Balls gave for missing those deadlines were not so compelling that the court was obliged to accept them. And when they moved for reconsideration, the Balls offered absolutely no explanation for why they had not submitted the expert’s report within the thirty-day extension they had requested or before the court entered summary judgment.

It would defeat the utility of summary judgment to permit a non-movant to delay indefinitely submitting evidence rebutting the movant’s prima facie showing. The Balls do not specify how much more time they should have been given, but the court did not rule until after the time they last requested had expired. Their failure to seek additional time before the court ruled precludes a claim that the court sua sponte should have given them more time than they had asked for or should have delayed ruling on the “ripe” summary judgment motion for some unknown period.

We also reject any argument that the court should have accepted the report of the Balls’ expert and denied even partial summary judgment. The Balls first submitted the report with their motion for reconsideration. Materials and arguments submitted for the first time on reconsideration may not be used to establish that the original ruling was in error.

Partial summary judgment was appropriate because the law firm made out a prima facie showing of entitlement to summary judgment on the liability claim addressed in its expert’s report. We therefore remand for entry of partial summary judgment as to those negligence claims covered by the law firm’s expert’s report.

C. Enhanced Attorney’s Fees Award

The superior court awarded the law firm attorney’s fees of $75,841-fifty percent of its incurred defense fees. The order stated that “[t]he fee is enhanced due to vexatious delays and misrepresentations to the court and defense counsel concerning expert testimony availability.” The Balls argue that it was error to award enhanced fees.

Alaska Civil Rule 82(b)(3) permits enhanced fee awards under some circumstances, but it is unnecessary to decide whether it was error to enhance the award here. Because the law firm was not entitled to complete summary judgment and because we remand for further proceedings, we vacate the attorney’s fees award. We vacate the costs award for the same reason.

IV. CONCLUSION

Because defendants only made out a prima facie showing supporting partial summary judgment, we REVERSE the judgment, VACATE the awards of attorney’s fees and costs, and REMAND for further proceedings, including entry of partial summary judgment as to the claims addressed in the report of the law firm’s expert.

MATTHEWS, Justice, not participating.

      . With respect to the facts of the underlying dispute, we draw permissible factual inferences in favor of the Balls, the opponents of the summary judgment motion. See Zok v. Collins, 18 P.3d 39, 40 n. 2 (Alaska 2001) (citation omitted); Moore v. Allstate Ins. Co., 995 P.2d 231, 233 (Alaska 2000) (citation omitted). These circumstances are described only for the purposes of resolving the legal issues before us. We do not intend to foreclose the parties from fully litigating genuine factual disputes on remand.

      . The report was not originally prepared in the form of an affidavit, but the law firm eventually submitted it in sworn form.

      . A dispute arose about whether this local attorney had ever been retained as an expert in this case. He testified at his February 2000 deposition that he had never actually been retained as an expert. The Balls’ original attorney filed a declaration asserting that the local attorney had agreed to be an expert in the case. The superior court found, in denying the Balls’ motion to reconsider the grant of summary judgment, that this local attorney "had never been engaged as an expert, had never agreed to be an expert, had never agreed to prepare a report, and had never been informed of the deadlines for expert reports.”

      . Arctic Tug & Barge, Inc. v. Raleigh, Schwarz & Powell, 956 P.2d 1199, 1200 (Alaska 1998).

      . Moore v. Allstate Ins. Co., 995 P.2d 231, 233 (Alaska 2000).

      . Id.

      . See Drake v. Wickwire, 795 P.2d 195, 197 (Alaska 1990).

        .See Kendall v. State, Div. of Corrs., 692 P.2d 953, 955 (Alaska 1984) (requiring expert testimony to establish standard of care in medical malpractice cases when negligence not evident to laypersons); see also Drake, 795 P.2d at 197 (extending Kendall rule to legal malpractice cases).

      . Alaska R. Civ. P. 56(c); Concerned Citizens of S. Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447, 450 (Alaska 1974).

      . Trombley v. Starr-Wood Cardiac Group, PC, 3 P.3d 916, 924 (Alaska 2000); Shade v. Co & Anglo Alaska Serv. Corp., 901 P.2d 434, 437-38 (Alaska 1995).

      11. The expert apparently assumed that nothing other than document preparation was relevant to the Balls’ claims. He had received a copy of a letter from attorney Horton to one of the plaintiffs, saying that the defendants had primary responsibility for preparing documents, creating debt and collateral instruments, and handling the stock transfer, and inferred from this letter that Horton's responsibilities did not include negotiation.

      . The law firm's summary judgment memorandum asserted that its expert "ha[d] opined that Defendants were not negligent in their representation of Plaintiffs,” and implied that the Cole report fully rebutted any claim that the defendants were liable. Its August 2000 reply memorandum asserted that the Cole report "address[ed] and refute[d] each allegation of malpractice in Plaintiffs’ Disclosures."

      . The Balls’ 1997 complaint alleged that the law firm “had a duty of due care to negotiate the sale of the Stock in the Corporations and to draft the documents of sale and closing for the sale of Stock in the Corporations consistent with [the] standard of care applicable to attorneys in Anchorage at the time.” It also alleged that the breach of that duty in negotiating the sale and preparing the documents harmed the Balls.
      The Balls' April 1998 disclosures asserted that ”[d]efendants failed to meet the standard of care of the legal profession to which they were obligated under the contract with the Plaintiffs in negotiating the sale [of] the Stock and in drafting the documents for the sale of the Stock in the Corporations.” Their July 2000 supplemental interrogatory answers, signed under oath by Gerald Ball, alleged, among other things, negligent negotiation as well as negligent document preparation. The court never ordered those responses struck as untimely, nor did the law firm ask the court to do so. The Balls served their supplemental interrogatory answers after the trial date was vacated and before a new trial date was set and a month before the law firm filed its reply memorandum supporting its summary judgment motion.
      The Balls’ August 15, 2000 opposition to the summary judgment motion argued that the report of the law firm's expert did not encompass the Balls' other liability theories and summarized those theories in some detail.

      . Philbin v. Matanuska-Susitna Borough, 991 P.2d 1263, 1265 (Alaska 1999) (holding movant bears initial burden of proving through admissible evidence (1) absence of genuine fact disputes, and (2) its entitlement to judgment as matter of law). See also Alaska Travel Specialists, Inc. v. First Nat'l Bank of Anchorage, 919 P.2d 759, 762 (Alaska 1996) (quoting Shade v. Co & Anglo Alaska Serv. Corp., 901 P.2d 434, 437 (Alaska 1995) ("The non-moving party need not demonstrate the existence of a genuine issue 'until the moving party makes a prima facie showing of its entitlement to judgment on established facts.' ”)).

      . Shade, 901 P.2d at 437 (citations omitted).

      . See Drake v. Wickwire, 795 P.2d 195, 197 (Alaska 1990); Kendall v. State, Div. of Corrs., 692 P.2d 953, 955 (Alaska 1984).

      . See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311 (9th Cir.1995).

      . 18 P.3d 39 (Alaska 2001).

      . 2 P.3d 74 (Alaska 2000).

      . Gerber, 2 P.3d at 75; Kendall, 692 P.2d at 954.

      . Gerber, 2 P.3d at 75; Kendall, 692 P.2d at 955.

      . Gerber, 2 P.3d at 78; Kendall, 692 P.2d at 955.

      . Zok, 18 P.3d at 41.

      . See Alaska R. Civ. P. 37(b)(2) (addressing sanctions for discovery violations); see also Hikita v. Nichiro Gyogyo Kaisha, Ltd., 12 P.3d 1169, 1176 (Alaska 2001) ("[A] trial court may not issue litigation-ending sanctions without first exploring possible and meaningful alternatives to dismissal.”) (internal quotation marks and citation omitted).
      At a minimum, no litigation-ending sanction would have been justified without a finding of willfulness. Underwriters at Lloyd's London v. The Narrows, 846 P.2d 118, 119 (Alaska 1993).

      . See Alaska R. Civ. P. 56(c); see also Yurioff v. Am. Honda Motor Co., 803 P.2d 386, 389 (Alaska 1990); Howarth v. First Nat’l Bank of Anchorage, 540 P.2d 486, 489-90 (Alaska 1975).

      . Alaska Rule of Civil Procedure 56(f) provides:
      Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party’s opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

        .Kendall, 692 P.2d at 955 (applying rule in medical malpractice case and affirming defendants’ summary judgment because Kendall did not carry her burden by presenting expert testimony rebutting defendants' showing that there was no genuine issue as to negligence). Similarly, in Kaiser v. Sakata, 40 P.3d 800, 805 (Alaska 2002), we held that summary judgment was appropriate in a medical malpractice case when a pro se plaintiff failed to produce countervailing expert testimony in response to defense expert evidence in support of summary judgment. In Drake, 795 P.2d at 197-98, we agreed with the superior court’s conclusion that expert testimony was required to prove that a lawyer had breached the professional standard of care, but held the lawyer was negligent as a matter of law. In Bohna v. Hughes, Thorsness, Gantz, Powell & Brundin, 828 P.2d 745, 761 (Alaska 1992), we reiterated our statement in Drake that a legal malpractice plaintiff must offer expert testimony to show a breach of an attorney’s duty of care unless the negligence is sufficiently non-technical to be evident to laypersons. In Zok, 18 P.3d at 42-43, we affirmed in part summary judgment for the defendant attorney because his former client did not support his claim with an expert’s opinion; we reversed the summary judgment as to those claims not requiring expert testimony, such as claims alleging failure to oppose motions.

      . See Zok, 18 P.3d at 42-43.

      . Gamble v. Northstore P'ship, 907 P.2d 477, 485 (Alaska 1995) (citations omitted).

      . Kessey v. Frontier Lodge, Inc., 42 P.3d 1060, 1062 (Alaska 2002).

      . See D.J. v. P.C., 36 P.3d 663, 668 (Alaska 2001) (holding no plain error for superior court failing to sua sponte extend deadline for response to summary judgment motion when non-movant was adequately represented by counsel and did not request extension or argue how he would have used extension); State, Dep’t of Revenue v. Mitchell, 930 P.2d 1284, 1288 (Alaska 1997) (quoting Burford v. State, 515 P.2d 382, 383 (Alaska 1973)) (holding not plain error superior court’s failure to raise waiver issue sua sponte because alleged error did not affect substantive rights and was not obviously prejudicial).

      . Alaska R. Civ. P. 77(k); Stadnicky v. Southpark Terrace Homeowner’s Ass’n, 939 P.2d 403, 405 (Alaska 1997).