text:
    2003 WY 38
    LIFE CARE CENTERS OF AMERICA, INC., d/b/a Westview Health Care Center, Appellant (Defendant), v. Margo DEXTER, Appellee (Plaintiff).
    No. 02-42.
    Supreme Court of Wyoming.
    March 17, 2003.

      Kate M. Fox and Kathleen G. Healy of Davis & Cannon, Cheyenne, Wyoming, Representing Appellant.
    Barbara A. Baker, Sheridan, Wyoming, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of expedited conference

   KITE, Justice.

[¶ 1] Life Care Centers of America, Inc. d/b/a Westview Health Care Center (Life Care) appeals from a judgment entered in favor of Margo Dexter after a trial to the court on her claims for breach of employment contract and breach of the implied covenant of good faith and fair dealing. We hold the trial court incorrectly applied Sanchez v. Life Care Centers of America, Inc., 855 P.2d 1256 (Wyo.1993), to find the employee handbook created an implied contract as a matter of law. However, under the circumstances of this particular case and for purposes of deciding the other issues presented, we will assume the trial court made a factual finding that the employee handbook was an implied contract.

[¶ 2] We further hold the trial court’s findings were insufficient to support its determination that Life Care breached the employment contract. The judgment contains no finding on the issue of whether cause existed to terminate Ms. Dexter’s employment without following the progressive discipline procedures. Under the terms of the implied contract, that finding was essential for a determination on the breach of contract claim. Therefore, we remand for additional findings on that issue. Finally, we hold there was insufficient evidence of a special relationship of trust and reliance to support judgment for Ms. Dexter on the breach of implied covenant claim and reverse that portion of the trial court’s judgment.

ISSUES

[¶ 3] Life Care presents the following issues:

(1) Applying correct principles of interpretation of an ambiguous contract to an employee handbook with an inconspicuous disclaimer, is the contract of employment at-will?
(2) Was the trial court’s finding that cause for termination did not exist clearly erroneous?
(3) Was there any basis for finding a breach of the covenant of good faith and fair dealing when (a) there was no special relationship and (b) the plaintiff was not deprived of any benefits to which she was entitled?

Ms. Dexter restates the issues as follows:

1. Whether a contract for employment existed.
2. Whether sufficient evidence was presented for the fact finder to determine that the contract for employment had been breached by the employer.
3. Whether sufficient evidence was presented for the fact finder to determine that the employer breached the implied covenant of good faith and fair dealing.

FACTS

[¶ 4] Life Care employed Ms. Dexter as the activities director in its nursing center in Sheridan for nearly six years. When Ms. Dexter was hired, Life Care gave her a copy of its employee handbook containing personnel policies, practices, and procedures for the nursing center. The handbook was identical to the one considered in Sanchez, 855 P.2d 1256. On June 30, 2000, Life Care terminated Ms. Dexter’s employment.

[¶ 5] Ms. Dexter filed a complaint against Life Care alleging claims for breach of contract and breach of the implied covenant of good faith and fair dealing. She claimed the handbook created a contract, giving her the right to continuing employment unless her employment was terminated for cause and in accordance with the progressive discipline procedures. She claimed Life Care breached the contract and the implied covenant of good faith and fair dealing by terminating her employment without cause and in violation of the progressive discipline procedures.

[¶ 6] Life Care answered the complaint and, after conducting discovery, moved for summary judgment claiming Ms. Dexter was an at-will employee; there was no contract because Ms. Dexter did not read or rely on the handbook; and, even if there was a contract, there was no breach of contract and no breach of the implied covenant of good faith and fair dealing. After a hearing, the trial court denied Life Care’s motion finding issues of fact existed on both the breach of contract claim and the claim for breach of the implied covenant. The ease proceeded to trial on October 18 and 19, 2001, and, on November 7, 2001, the trial court issued a decision letter finding Life Care had breached Ms. Dexter’s employment contract and the implied covenant of good faith and fair dealing and awarding $24,276 in damages to Ms. Dexter. The trial court entered judgment on November 26, 2001, in accordance with its decision letter.

STANDARD OF REVIEW

[¶7] We review the trial court’s conclusions of law de novo. Principal Life Insurance Company v. Summit Well Service, Inc., 2002 WY 172, ¶20, 57 P.3d 1257, ¶20 (Wyo.2002); Polo Ranch Company v. City of Cheyenne, 969 P.2d 132, 136 (Wyo.1998). The trial court’s findings of fact are subject to the clearly erroneous standard:

The factual findings of a judge are not entitled to the limited review afforded a jury verdict. While the findings are presumptively correct, the appellate court may examine all of the properly admissible evidence in the record. Due regard is given to the opportunity of the trial judge to assess the credibility of the witnesses, and our review does not entail re-weighing disputed evidence. Findings of fact will not be set aside unless they are clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.

Fremont Homes, Inc. v. Elmer, 974 P.2d 952, 958 (Wyo.1999) (citations omitted); see also Jessen v. Jessen, 2002 WY 33, ¶ 7, 41 P.3d 543, ¶ 7 (Wyo.2002). Also, in reviewing a trial court’s findings of fact,

we assume that the evidence of the prevailing party below is true and give that party every reasonable inference that can fairly and reasonably be drawn from it. We do not substitute ourselves for the trial court as a finder of facts; instead, we defer to those findings unless they are unsupported by the record or erroneous as a matter of law.

Kendrick v. Barker, 2001 WY 2, ¶ 12, 15 P.3d 734, ¶ 12 (Wyo.2001). We affirm the trial court’s findings if there is any evidence to support them. Capshaw v. Schieck, 2002 WY 54, ¶ 27, 44 P.3d 47, ¶27 (Wyo.2002).

DISCUSSION

A. Breach of Contract

1. Existence of a contract

[¶ 8] Life Care alleges error in the trial court’s application of Sanchez. In Sanchez, the employee appealed from an order granting summary judgment for the employer based on the finding that the disclaimer contained in the same handbook at issue here was conspicuous. Reversing the summary judgment, this court said: “[W]e determine that the disclaimer was not physically conspicuous and its contents were ambiguous in that there was language that inferred that Life Care intended to modify the at-will employment to an employment which could only be terminated for cause.” 855 P.2d at 1259. We said further:

The meaning and effect of the employment- relationship in this ease, a mixed question of law and fact, remains unresolved. Therefore, we must reverse summary judgment. The case is remanded to the trial court for determination of whether the employee handbook modified the employment relationship from one terminable at will to one terminable only for cause.

Id. at 1259-60. Despite this court’s holding that the handbook was ambiguous, making it subject to an interpretation allowing termination only for cause and in accordance with specified procedures, Life Care made no changes to the handbook after Sanchez was decided. Thus, under Sanchez and subsequent cases, the question of whether the handbook at issue in this ease created an implied contract was factual and was to be resolved by the trier of fact. The trial court’s initial task in the present case was, therefore, to make a factual finding as to whether, given the ambiguity created by the inconspicuous disclaimer, the handbook created an implied in fact employment contract providing employees could be discharged only for cause and in accordance with the progressive discipline procedure.

[¶ 9] Life Care asserts that, contrary to this court’s directive that interpretation of the handbook was a question of fact, the trial court in this case interpreted Sanchez as holding the handbook was an implied contract as a matter of law. Thus, Life Care contends the trial court’s conclusion that the handbook was a contract was reached without the independent analysis or fact-finding required by Sanchez. Life Care’s contentions are borne out by the trial court’s findings of facts pertaining to Sanchez and the implied contract issue:

5. [The] Wyoming Supreme Court has had the occasion to rule on the sufficiency of this same Defendant’s “disclaimer” language in the handbook given to Plaintiff in Sanchez v. Life Care Centers, 855 P.2d 1256 (Wyo.1993). The case held the Employee Handbook (same as the language herein) “... disclaimer was not physically conspicuous and its contents were ambiguous in that there was language that inferred that Life Care intended to modify the at-will employment to an employment which could only be terminated for cause.” (p. 1259).
6. Plaintiffs Employee Handbook herein (Ex. I) thus created an expectation that employment "will not be terminated except for cause and resulted in an implied contract of employment that overcame the at-will employment presumption of this state.

From these findings, it appears the trial court incorrectly read Sanchez as holding the handbook created an implied contract as a matter of law. That was not the holding in Sanchez, and the trial court’s finding to that effect was in error. However, under the particular circumstances of this case and for purposes of deciding the remaining issues raised on appeal, we will assume the trial court made a factual finding that the handbook created an implied employment contract. See Springer v. Blue Cross and Blue Shield of Wyoming, 944 P.2d 1173, 1176 (Wyo.1997), for a similar outcome — the trial court assumed, without deciding, that the handbook was a contract; on appeal, this court began its consideration of the breach of contract issue from that same premise.

2. Breach of contract

[¶ 10] Life Care alleges the trial court found there was no cause for termination and that finding was clearly erroneous. In reviewing the decision letter and the judgment, we note the trial court made no finding on whether Life Care had cause to terminate Ms. Dexter’s employment. The only findings appearing in the judgment on the issue of cause are:

13. Plaintiffs “Termination Report” (Exhibit Al) listed “Lack of effort/unsatisfactory performance” as the reason for discharge.
14. Plaintiffs “personnel file” that existed at the time of her termination did not contain certain documentation Defendant claims supports “for cause” termination including Exhibits A5, A10, A15-A17, A45, A82 and A83. Zerwas admitted items were inserted into the file after the termination but also testified the items were created before Plaintiffs termination.
15. Exhibits A3 and A4 were not discussed with Plaintiff prior to termination. (Zerwas testimony).
16. Defendant did not prove by a preponderance of [the] evidence that Plaintiff falsified any records. (Zerwas and Horton testimony).
17. Trial evidence does not allow the Court to conclude that the high turnover rate in Plaintiffs department was Plaintiffs fault. (Exhibit B).
18. Defendant did not follow its policies regarding “progressive stages of disciplinary procedures” when terminating Plaintiff (see Exhibit I, Employee Handbook sections on Discipline and Termination and Disciplinary Procedures). Hence, Defendant breached the implied covenant of good faith and fair dealing.

Thus, although the trial court made a finding that Life Care did not follow the progressive discipline procedures in terminating Ms. Dexter’s employment, it did not make a similar finding on whether cause existed for the termination.

[¶ 11] Ordinarily, in implied employment contract cases, a breach of contract is established by the employer’s failure to follow the procedures contained in the handbook, by a showing there was no cause for termination, or by both. In this ease, the terms of the handbook made a factual finding on cause essential. The “Disciplinary Procedures” provision of the Life Care handbook provided as follows:

The nursing center has no desire to discipline any associate. Good management, however, demands that certain procedures are followed to correct or eliminate problems, since they can and do affect patient care. It is our assumption that most offenses are committed without forethought or destructive intent. However, a series of minor infractions suggests a continuing problem, and must be viewed as a source of major concern. The nursing center may, depending on the severity of the offense terminate an associate after the first offense. Generally, though, an associate will be subject to the following stages of progressive discipline:
1. First written warning.
2. Second written warning.
3. Suspension without pay, documented in file pending investigation. If investigation revealed no such offense occurred, the associate will be paid for the suspension period, will receive a formal apology from administration, and will have the third offense and notice of suspension stricken from his/her personnel file.
4. [Same as 3 except “fourth offense” plus the following:] If the investigation substantiates the offense, the associate will be terminated.
This will be our usual and preferred process for administering discipline. However, conduct of any type which causes the center to lose confidence in your ability to perform adequately your assigned job may result in immediate discharge.

(Emphasis added.)

[¶ 12] Given these provisions, upon finding Life Care failed to follow the progressive discipline procedures, the trial court had to determine whether there was cause for immediate discharge under the terms of the employment contract. That is, the trial court had to determine whether the evidence supported a determination that Life Care complied with the contract terms when it discharged Ms. Dexter without following the usual steps of progressive discipline under the lost confidence provision of the policy. The trial court made no such factual finding, and, without it, the judgment cannot stand. Therefore, we remand the case to the trial court for additional findings of fact on whether, under the terms of the handbook, Life Care had cause to terminate Ms. Dexter’s employment without following the progressive discipline procedures.

[¶ 13] In making additional findings, the trial court will need to consider the terms of the handbook in light of the evidence presented by Life Care that it had concerns about Ms. Dexter besides those related to falsification of records and high turnover— the two concerns the trial court addressed in its findings of fact. Life Care presented evidence that Ms. Dexter failed to promptly deliver medical records; exhibited poor management skills; faded to improve after being counseled for poor work performance; and treated residents, their families, and other employees rudely. The trial court’s findings addressed none of these concerns, making it difficult for this court to determine whether the findings supported a conclusion that Life Care did not have cause to terminate Ms. Dexter’s employment under the terms of the handbook and thereby breached the employment contract.

[¶ 14] Against the evidence presented by Life Care, the trial court will need to weigh the evidence presented by Ms. Dexter to support her claims that the reasons given for her discharge were pretextual and Life Care’s executive director took a personal dislike to her, terminated her employment without cause, and attempted to justify these actions by later adding supporting documentation to her personnel file. The trial court also will need to consider the evidence presented by Ms. Dexter that the complaints lodged against her were not credible and, in some instances, were not discussed with her. Only with factual findings as to these matters can the trial court determine whether Life Care had cause to terminate Ms. Dexter’s employment under the terms of the handbook without following the progressive discipline procedures.

[¶ 15] In addition to applying the terms of the handbook in determining whether there was cause for termination, we also ask the trial court to apply the good faith standard for review of employer firing decisions applied by the majority of other jurisdictions that have addressed the issue. Cotran v. Rollins Hudig Hall International, Inc., 17 Cal.4th 93, 69 Cal.Rptr.2d 900, 948 P.2d 412 (1998); Almada v. Allstate Insurance Co., Inc., 153 F.Supp.2d 1108 (D.Ariz.2000), aff'd, 285 F.3d 798 (9th Cir.2002); Southwest Gas Corporation v. Vargas, 111 Nev. 1064, 901 P.2d 693 (1995). Under this standard, the question to be resolved by the fact finder is not, “ ‘Did the employee in fact commit the act leading to dismissal?’ ” Co-tran, 69 Cal.Rptr.2d 900, 948 P.2d at 421-22; see also Almada, 153 F.Supp.2d at 1114. Rather, it is, “ ‘Was the factual basis on which the employer concluded a dischargea-ble act had been committed reached honestly, after an appropriate investigation and for reasons that are not arbitrary or pretextual?’ ” Id. “Cause” is defined under this standard as

fair and honest reasons, regulated by good faith on the part of the employer, that are not trivial, arbitrary or capricious, unrelated to business needs or goals, or pretextual. A reasoned conclusion, in short, supported by substantial evidence gathered through an adequate investigation that includes notice of the claimed misconduct and a chance for the employee to respond.

Cotran, 69 Cal.Rptr.2d 900, 948 P.2d at 422. Wyoming has not previously adopted this standard for reviewing employer termination decisions. We do so now, with one slight variation. Under the standard applicable in Wyoming, notice and an opportunity to respond must be shown in implied employment contract cases only when the express terms of the implied contract so provide. Recognizing that there may be circumstances where notice and an opportunity to respond are not practicable, we decline to impose such a requirement in all termination cases arising out of an implied employment contract.

[¶ 16] If, in applying this standard to the evidence presented, the trial court finds that Life Care did not have fair and honest reasons for terminating Ms. Dexter’s employment but rather its reasons were trivial, arbitrary or capricious, unrelated to business needs, pretextual or unsupported by substantial evidence gathered through an adequate investigation and, if required by the contract, after notice to Ms. Dexter and an opportunity for her to respond, judgment for Ms. Dexter on the breach of contract claim must stand. If, however, the trial court finds, based upon the evidence, that Life Care had fair and honest reasons for the termination and those reasons were supported by substantial evidence gathered through an adequate investigation that included, if required by the handbook, notice to Ms. Dexter of the claimed misconduct and a chance for her to respond, judgment for Ms. Dexter on the breach of contract claim cannot stand.

[¶ 17] Because we remand to the trial court for additional findings on whether cause existed to support the termination, it is necessary to address two other claims presented by Life Care which have relevance to the breach of contract claim. First, Life Care contends error occurred when the trial court improperly placed the burden on the employer to prove Ms. Dexter falsified records. The trial court found: Life Care “did not prove by a preponderance of evidence that [Ms. Dexter] falsified any records.”

[¶ 18] In an employment contract ease, the plaintiff has the burden of proving the employer breached the employment contract. In this case, Ms. Dexter had the burden of proving Life Care terminated her employment without cause and without following the handbook procedures. Once she met that burden, the burden shifted to Life Care to present contrary evidence showing that, in fact, there was cause for termination, including evidence to support its contention she was fired for falsifying documents. Although the trial court’s finding may be inart-fully worded, suggesting Life Care had the initial burden of proof on the issue of cause for termination, that finding could likewise be read to mean Life Care failed to come forward with evidence rebutting Ms. Dexter’s evidence, thus allowing her to carry her burden of proof. We find any error in this regard harmless under the circumstances.

[¶ 19] Life Care also contends error-occurred when the trial court refused to allow testimony concerning complaints from other employees and residents to establish Ms. Dexter’s performance was unsatisfactory. Finding substantial evidence of employee complaints concerning Ms. Dexter was introduced despite the trial court’s ruling on the hearsay objection, we hold any error in that ruling was harmless. During cross-examination of Jean Zerwas, Life Care’s executive director, the following exchange occurred:

Q ... You mentioned that Ms. Dexter had a negative attitude. Was she rude?
A It was frequently reported to me that Margo was rude.
Q And you received complaints—did you receive complaints from activity staff that Margo Dexter was rude to them?
A Yes, I did....
Q Who did you receive those complaints from?
A Bev Patterson. I’m drawing a blank. Are those names—is that list in here that I could look at?

At this point, a list containing the names of eleven women who worked as aides in the activity department was admitted into evidence. The witness read the names listed on the exhibit, and the following exchange occurred:

Q They all complained to you about Margo’s treatment?
A Yes.
[Hearsay objection sustained.]
Q Did you receive complaints from [Life Carejs activity staff about Margo’s abrasiveness?
A Yes, I did.
Q Did you receive this letter?
A Yes, I did. And when I went to talk to her about it, she just said, “Margo doesn’t like me.”
[Hearsay objection sustained.]
Q Did you speak to Rosa about this— the incident that’s documented in A-43, 42 and 43?
A Yes, I did.
Q And did she believe that Margo’was rude to her?
[Hearsay objection sustained.]
Q I’d like you now, please, to turn to Exhibit A-46.
Do you recognize that document?
A Yes, I do.
Q What is it?
A It’s a letter that was written to me by Valerie Whyard, who was activity aide. And I received this in the mail after she had terminated her employment.
Q Is it fair to say that the substance of this complaint was that Ms. Whyard thought that she was being given inconsistent directions by her supervisor?
A Yes.
Q Did you receive complaints from the staff members outside of the activity department about Margo?
A Yes.
Q Did Kenny Custis ever complain to you about Margo?
[Hearsay objection overruled.]
A Yes.
Q And what was the substance of his complaint?
[Hearsay objection sustained.]
Q Did Carla Blatchford complain to you about Margo Dexter?
A Yes.
Q Did Nita Hoffer complain to you about Margo Dexter?
A Yes.
Q Did John Johnston [complain] to you about Margo Dexter?
A Yes.
Q Did all of these staff members complain to you about Margo Dexter’s treatment of them?
A Yes.

[¶ 20] In addition to this testimony, there was other testimony from Ms. Zerwas concerning alleged complaints by residents or other employees about Ms. Dexter. Life Care also was allowed to introduce exhibits documenting complaints from others concerning Ms. Dexter. Finally, Life Care called five witnesses to testify concerning their experiences in working with Ms. Dexter. Under these circumstances, any error that occurred in the trial court’s refusal to allow the proposed testimony was harmless.

B. Breach of the Implied Covenant of Good Faith

[¶ 21] The trial court also found Life Care breached the implied covenant of good faith and fair dealing by failing to follow the progressive discipline procedures contained in the handbook when terminating Ms. Dexter’s employment. “[A]ll contracts of employment contain an implied covenant of good faith and fair dealing.” Wilder v. Cody Country Chamber of Commerce, 868 P.2d 211, 220 (Wyo.1994). However, a duty giving rise to tort liability for breach of the implied covenant exists only in rare and exceptional cases. Id. at 221. In order for a duty to arise, there must be a showing of a special relationship of trust and reliance between the employee seeking to recover and the employer. Id. “Trust and reliance may be found by the existence of separate consideration, common law, statutory rights, or rights accruing with longevity of service.” Id.

[¶ 22] As evidence of a special relationship, Ms. Dexter points to the fact that she was employed with Life Care for nearly six years. In Terry v. Pioneer Press, Inc., 947 P.2d 273, 278 (Wyo.1997), the court held longevity of service for nearly six years, without more, was insufficient to establish a special relationship. Usually, when a special relationship based on long-term employment is found sufficient to support a cause of action, it is coupled with a discharge calculated to avoid employer responsibilities to the employee, such as payment of benefits. Trabing v. Kinko’s, Inc., 2002 WY 171, ¶ 23, 57 P.3d 1248, ¶ 23 (Wyo.2002); Terry, 947 P.2d at 278. Ms. Dexter does not claim, nor does the evidence suggest, her discharge was calculated to avoid payment of benefits owed to her. Absent such a claim, and without proof of any other factors giving rise to a special relationship, Ms. Dexter’s claim must fail. Without a special relationship, no duty exists on Life Care’s part, and, without a duty, there can be no breach. Springer, 944 P.2d at 1178.

[¶ 23] Just as Ms. Dexter’s six years of service is insufficient to establish a claim for breach of the implied covenant, so is the trial court’s finding insufficient that Life Care failed to follow the progressive discipline procedures when terminating Ms. Dexter’s employment. Regardless of whether policies were or were not followed, there must be proof of a special relationship of trust and reliance to proceed on a claim for breach of the implied covenant. The claim that a contract existed and it was breached, without more, is insufficient to establish the required special relationship. Therefore, the trial court’s conclusion that Life Care breached the implied covenant of good faith and fair dealing was clearly erroneous.

CONCLUSION

[¶ 24] We hold as follows:

1. The trial court incorrectly applied Sanchez as holding that the Life Care handbook created an implied contract as a matter of law. Whether the handbook created an implied contract is, under Sanchez, a question of fact. For purposes of resolving this appeal, however, we have assumed the trial court made a factual determination that the handbook created an implied contract.
2. The trial court’s findings of fact were insufficient to support the determination that Life Care breached the employment contract. We remand to the trial court for additional findings of fact on whether there was cause for termination. In making these findings, the trial court must apply the terms of the handbook and the good faith standard for review of employer termination decisions adopted herein.
3.Regardless of the outcome on the breach of contract claim, the judgment in favor of Ms. Dexter on the claim for breach of the implied covenant of good faith and fair dealing is reversed.

[¶ 25] Reversed and remanded.

      . It is of some concern to this court that Life Care did nothing to resolve the ambiguity after Sanchez, thereby leaving open the possibility of future litigation surrounding the meaning of its handbook and the employment relationship. Had Life Care amended the handbook to clarify employment was at will, if that is what it intended, this case likely would not be before us.

      . See, e.g., Ormsby v. Dana Kepner Co. of Wyo. Inc., 997 P.2d 465 (Wyo.2000), where the court held the question of whether an ambiguous handbook results in an implied contract of employment is one of fact and not of law.

      . Exhibit A5 is a request to schedule a doctor’s appointment for a resident with a handwritten note by Life Care’s executive director, Jean Zer-was, at the bottom indicating Ms. Dexter failed to make the appointment until three weeks after the request was made. Exhibit Al 0 is an application for employment with a handwritten note by Ms. Zerwas stating Ms. Dexter hired a dietary employee without discussing it with the dietary supervisor. Exhibits A15-A17 concern the resignation of an employee over alleged falsification of records by Ms. Dexter. Exhibit A45 documents an employee's resignation over promises allegedly made and not kept by Ms. Dexter concerning the employee’s work schedule. Exhibits A82 and A83 concern a grievance filed by Ms. Dexter about an incident with another employee.

      . Exhibit A3 is a comment form reflecting Ms. Dexter failed to deliver medical records to physicians' offices. Exhibit A4 documents allegations of inappropriate behavior by Ms. Dexter toward a former employee and a resident.


source: Caselaw Access Project

author: HILL, Chief Justice.

license: Public Domain

text:
    2003 WY 39
    Anne WHITE, Appellant (Defendant), v. Dan ALLEN and Melinda Allen, Appellees (Plaintiffs).
    No. 02-121.
    Supreme Court of Wyoming.
    March 18, 2003.

      Bernard Q. Phelan, Cheyenne, Wyoming, Representing Appellant.
    Peter G. Arnold, Cheyenne, Wyoming, Representing Appellees.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   HILL, Chief Justice.

[¶ 1] Appellant, Anne White (White), appeals from the order of the district court that granted summary judgment in favor of Ap-pellees, Dan and Melinda Allen (Allens) and dismissed her counterclaims. The Allens have an easement for a roadway across White’s property. They erected cattle guards on the eastern and western boundaries of the easement where the roadway intersects the fence enclosing the White parcel. A dispute arose between the parties when White placed gates on that easement as it passed through her fence lines, and insisted that the gates remain closed before and after each passage through the fence. The district court ordered White to remove her gates and prohibited her from otherwise interfering with the Allens’ use of the easement.

[¶ 2] We will reverse and remand with directions that further proceedings are required because there are genuine issues of material fact that preclude summary judgment.

ISSUES

[¶ 3] White poses these questions:

I. Whether, as a matter of law, cattle guards do not materially increase the burden on the servient estate, or whether such factual determination depends on the specific circumstances?
II. Whether Wyo. Stat. § 6-9-202 imposes a duty which, in these circumstances, gives rise to an action in tort?

The Allens present these arguments:

I. Whether the owner of land which is encumbered with an access easement has the right to place wire gates across cattle guards erected within the easement by the easement owner?
II. Is the determination of whether cattle guards increase the burden on the servient estate a material question of fact?
III. Whether W.S. 6-9-202 which makes it a crime to leave a gate open is applicable when the gate in question is not legally permissible?

FACTS

[¶4] The Allens initiated this action by means of a “Complaint for Declaratory Judgment and Money Judgment.” The Allens (who possess the dominant estate) have an easement across White’s property (the ser-vient estate). In their complaint, the Allens alleged that White insisted on having a wire gate across the cattle guards that they installed at each end of their easement, and that she otherwise interfered with their use of the easement, as well as their tenants’ and visitors’ use of the easement. The Allens alleged that White damaged the cattle guards they installed, thus rendering them less effective for their intended purpose. They further alleged that they have friends who are disabled and physically unable to open and close the gates, which are unusually tight and difficult to operate, and that emergency services would be delayed by the gates. The source document for the Allens’ easement contains only this language: “Subject to an access road right-of-way for the non-exclusive use by the patentees, their successors and assigns [Allens], to construct, use, control, maintain, improve and repair a road over and across [White’s land].”

[¶ 5] White answered that complaint, claiming that the cattle guards installed by the Allens were inadequate and substantially increased the burden on her property because they allowed her cattle to drift out of her property. In addition, White claimed to have been damaged by the failure of the Allens to close her gates. White made a demand for a jury trial.

[¶ 6] The Allens filed a motion for summary judgment and White opposed that motion. Both parties submitted affidavits and, on the basis of those affidavits, the district court made its findings. The district court found that the Allens had placed cattle guards on the easement so as to facilitate their use of it. White then installed wire gates without the permission of the Allens and insisted that those gates be kept closed. The gates interfered with the Allens’ use of their easement. The Allens maintained that it was inconvenient to get out and open, and then close, the two gates each time they or a visitor traversed the road. In addition, they asserted that it was dangerous because it was necessary to walk over the cattle guards, especially when they were wet, snowy, or icy. The Allens once observed one of White’s cattle use its horns to lift a fence and go under it, thereby breaching the cattle guard by an alternate method. The district court found that the gates would either require emergency vehicles to drive through the gates, or to have to stop and open and close them. The Allens attested that, on occasions, cattle escaped from White’s premises when the gates were closed and, on occasions, did not escape when the gates were open. The district court also made these findings:

12. When a right-of-way easement is granted, a right of passage is given to the owner of the easement. The owner of the servient estate, of course, retains all rights of ownership which are consistent with the [Allens’] use of the easement. These competing rights must be balanced to promote the enjoyment of both the easement and the servient estate. [White’s] cattle, in search of food, escape from her land regardless of whether the gates are in place and closed and therefore a reasonable balancing of the parties’ rights dictates that the gates are an unnecessary impediment to the [Allens’] right to use, maintain and control the easement.
13. The [Allens’] use of cattle guards in place of gates does not materially increase the burden on the servient estate held by [White], however, opening and closing of two different gates each time one enters or leaves the dominant estate is quite burdensome.
14. The [Allens] should be allowed to maintain in place their cattle guards instead of gates on the easement in order to improve their convenience of using the easement.
15. [White] as the owner of the ser-vient estate does not have the right to insist upon the usage of gates in addition to or in lieu of cattle guards.

[¶ 7] The Allens’ evidentiary materials included an affidavit from a University of Wyoming professor, stating that the cattle guards installed by the Allens were more effective at keeping the cattle in than were White’s fences and met Wyoming Department of Transportation (WDOT) Standards. We note that the WDOT standards are not a part of the record, nor are the relevance of those standards to this case readily apparent since neither of these cattle guards is on a highway or railroad crossing.

[¶ 8] In her affidavit, White attested to the fact that she used the land which the easement traverses for grazing cattle, and that it has been so used since the area was settled by cattle growers. White averred that the Allens placed the cattle guards on the easement without her consent. White claimed that she informed the Allens that cattle guards would not suffice before they put them in. When her cattle began escaping, White informed the Allens that the gates would have to be kept shut. White asserted that her cattle escaped over the cattle guards from time to time and she attached photographs to her affidavit purporting to show some of those occasions. In addition, White attested to the fact that she is under court order to keep her cattle contained or face contempt and/or criminal proceedings.

STANDARD OF REVIEW

[¶ 9] When we review a summary judgment, we have before us the same materials as did the district court, and we follow the same standards which applied to the proceedings below. The propriety of granting a motion for summary judgment depends upon the correctness of the dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. A genuine issue of material fact exists when a disputed fact, if proven, would have the effect of establishing or refuting an essential element of an asserted cause of action or defense. We, of course, examine the record from a vantage point most favorable to that party who opposed the motion, affording to that party the benefit of all favorable inferences that fairly may be drawn from the record. Central Wyoming Medical Laboratory, LLC v. Medical Testing Lab, Inc., 2002 WY 47, ¶ 15, 43 P.3d 121, ¶ 15 (Wyo.2002).

DISCUSSION

Is There a Genuine Issue of Material Fact

[¶ 10] In Van Raden v. Harper, 891 P.2d 78, 78-79 (Wyo.1995), we held that whether or not the substitution of cattle guards for gates on a right-of-way easement materially increases the burden on the ser-vient estate is a question of law. In a dissent joined by Justices Lehman and Golden, it was concluded that such an issue is a question of fact. Although it was surplusage as applied, we iterated our holding in Van Raden in the case Weiss v. Pedersen, 933 P.2d 495, 500 (Wyo.1997). Very recently, in Hutchings v. Krachun, 2002 WY 98, ¶ 18, 49 P.3d 176, ¶ 18 (Wyo.2002), we stated:

In Weiss v. Pedersen, 933 P.2d at 500, we specifically held that the owner of the ser-vient estate cannot impede the easement holder’s use of the easement by the placement of a gate in lieu of a cattle guard. Furthermore, Van Raden, 891 P.2d at 79, stands for the proposition that an easement holder’s installation of a cattle guard is not an unauthorized increase in the burden on the servient estate. Consequently, our precedent supports the conclusion that, in most cases, the easement owner has the ultimate right to decide whether gates or cattle guards will be employed on access easements. Allowing the placement of a gate on the easement where it meets the county road by landowners prohibits the access and convenient passage of easement owner along the easement as expressly granted.

[¶ 11] However, in the Hutchings ease we were not confronted with a case involving issuance of a summary judgment, but rather with findings of a district court made after a trial to the court. In addition, in Hutchings Justices Hill and Kite joined in a dissent, which asked the Court to disavow the Van Raden and Weiss decisions. The dissent in Van Raden and the dissent in Hutchings are very much in harmony, and today we find ourselves obliged to overrule Van Raden with respect to its conclusion that the justification for the placement of cattle guards, in lieu of gates, is a question of law. As a consequence, our reliance on Van Raden in the context of both Weiss and Hutchings is also negated.

[¶ 12] The premise of our holding today has been summarized as follows:

Turning first to gates across a right of way acquired by grant, the general rule is that the grant of a way without reservation of the right to maintain gates does not necessarily preclude the servient estate owner from having such gates, and unless it is expressly stipulated in the grant that the way shall be an open one, or unless a prohibition of gates is implied from circumstances, the servient owner may maintain a gate across the way if necessary for the use of the servient estate and if the gate does not unreasonably interfere with the right of passage.

Daniel E. Feld, Annotation, Right to Maintain Gate or Fence Across Right of Way, 52 A.L.R.3d 9 § 2 at 15 (1973 and Supp.2002).

[¶ 13] The cases collected by the annotation establish that the factual questions to be answered in circumstances such as those presented here are questions of fact, which are not suitable for resolution by way of summary judgment. "... [0]rdinarily, what may be considered a proper use by the servient owner is a question of fact.” Schold v. Sawyer, 944 P.2d 683, 685 (Colo.App.1997) (citing United States v. O’Block, 788 F.2d 1433 (10th Cir.1986) for the proposition that Utah law established that whether restriction on access to easement is reasonable is a question of fact. Wykoff v. Barton, 646 P.2d 756, 759 (Utah 1982)); Engel v. Gampp, 2000 MT 17, ¶ 50, 298 Mont. 116, 993 P.2d 701, ¶ 50 (2000) (citing Gabriel v. Wood, 261 Mont. 170, 862 P.2d 42, 45-46 (1993)); Marshall v. Blair, 130 Idaho 675, 946 P.2d 975, 982 (1997).

[¶ 14] Another recent case in point dealt with circumstances very much akin to those confronted in the instant matter. In Watson v. Banducci, 158 Or.App. 223, 973 P.2d 395, 401 (1999), a long-time rancher testified that, “cattle guards, in general, do not work effectively without gates:”

Any time [livestock] are crowded up close or if you wean calves or separate livestock that they will get in a position where they will try jumping them, sometimes they don’t and they break legs, other times they jump them. Horses are bad for just trying cattle guards because they get running and playing and they always end up in the cattle guard it seems like.

973 P.2d at 401-402.

[¶ 15] In that case, the servient landowner met his burden of establishing that the gate was reasonable. As to the second question, whether the gates posed an unreasonable interference with the easement, the burden rests with the dominant estate owner:

In other words, plaintiffs were obligated to show that it is essential to their enjoyment of the easement that defendants not close gates B and C and not lock gate B. Plaintiffs produced evidence that the gates caused some inconvenience to plaintiffs and persons visiting their property, in that they must stop, unlock, and open the gates to pass through, and then must reclose and relock the gates before proceeding. Inconvenience of that nature, however, was inherent in the grant of an easement for a gateway road — that is, a road that would be gated in a manner consistent with the ordinary use of the surrounding land. Because the easement expressly made plaintiffs’ right to use the roadway subject to such inconveniences, they needed to show more.

Watson, 973 P.2d at 402. In this case, the district court did make such factual findings, yet, at the same time, granted summary judgment. Those findings included:

12 .... a reasonable balancing of the parties’ rights dictates that the gates are an unnecessary impediment to the [Allens’] rights to use, maintain and control the easement.
13. The use of cattle guards in place of gates does not materially increase the burden on the servient estate ..., however, opening and closing of two different gates each time one enters or leaves the dominant estate is quite burdensome.
14. The [Allens] should be allowed to maintain in place their cattle guards instead of gates on the easement in order to improve their convenience of using the easement.

While all of these facts are relevant to the ultimate determination pursuant to the applicable legal standard, they were disputed and summary judgment was inappropriate.

[¶ 16] In the instant case, the phrase “gateway road” does not appear in the easement. However, the language used in the easement, which benefits the Allens, does not unambiguously prohibit the installation of gates. Whether such gates are reasonably necessary to the servient estate, or constitute an unreasonable inconvenience to the dominant estate, are questions of fact to be resolved by the fact finder in the light of all the evidence that may be presented by the parties. See Lazy Dog Ranch v. Telluray Ranch Corp., 923 P.2d 313, 316-18 (Colo.App.1996) (citing Restatement of Property § 483 (1944)); Gamburg v. Cooper, 131 Ariz. 545, 642 P.2d 890, 891-92 (App.1982). With respect to the construction of easements, see 3 Richard Ray Powell on Real Property § 24.03 (2002), and 4 Richard Ray Powell on Real Property § 34.12 (2001).

The Significance of Wyo. Stat. Ann. § 6-9-202

[¶ 17] White contends that Wyo. Stat. Ann. § 6-9-202 creates in her a right to file a tort action against the Allens under the circumstances presented here. That statute provides: “A person is guilty of a misdemeanor punishable by a fine of not more than seven hundred fifty dollars ($750.00) if he opens and neglects to close a gate or replace bars in a fence which crosses a private road or a river, stream or ditch.” This argument is not supported by cogent argument or pertinent authority and we decline to consider it further. GGV v. JLR, 2002 WY 19, ¶ 20, 39 P.3d 1066, ¶ 20 (Wyo.2002).

CONCLUSION

[¶ 18] There are genuine issues of material fact with respect to the reasonableness of White’s placement of gates on the easement, as well as with respect to the substantiality of the inconvenience posed by those gates for the Allens. The order on summary judgment is reversed and the matter is remanded to the district court for proceedings consistent with this opinion.

      . In so holding, we relied on Mize v. Ownby, 189 Tenn. 207, 225 S.W.2d 33, 35 (1949). That case does not stand for the proposition for which it was cited at all. Indeed, the opinion makes clear that the trial court took a large volume of proof. The central concerns of that case were the effectiveness of cattle guards versus gates, as well as the reasonableness of gates versus inconvenience to easement holders, issues that appear to be alive and well to this date. Cooper v. Polos, 898 S.W.2d 237, 239-242 (Tenn.App.1995). The ultimate holding of the case was much the same as the cases cited in our discussion. The Tennessee Supreme Court held:
      The proof shows that the defendant's family used motor vehicles in going to and from their work. The Court of Appeals gave defendant the right to install cattle guards, at his expense, according to the plans of the University of Tennessee. Defendant was charged with the duty of suitably maintaining such cattle guards, and if they become out of repair, or do not adequately perform the functions for which they were intended, complainant may apply to the trial court for a restoration of the gates, and defendant will be liable for any damages sustained as an incident thereto.

        Mize, 225 S.W.2d at 35.

      . The 1944 Restatement provided:
      § 483. Factors in Ascertaining Extent.
      In ascertaining the extent of an easement created by conveyance, the following are important factors
      (a)the circumstances under which the conveyance was made,
      (b) the fact that the conveyance was or was not gratuitous,
      (c) the use made of the servient tenement before the conveyance,
      (d) the use made of the servient tenement after the conveyance.

        The Restatement of the Law Third, Property, Servitudes (2000), provides this guidance:
      §4.1 Interpretation of Servitudes
      (1) A servitude should be interpreted to give effect to the intention of the parties ascertained from the language used in the instrument, or the circumstances surrounding the creation of the servitude, and to carry out the purpose for which it was created.
      § 4.10 Use Rights Conferred by a Servitude
      Except as limited by the terms of the servitude determined under § 4.1, the holder of an easement or profit as defined in § 1.2 is enti-tied to use the servient estate in a manner that is reasonably necessary for the convenient enjoyment ^of the servitude. The manner, frequency, and intensity of the use may change over time to take advantage of developments in technology and to accommodate normal development of the dominant estate or enterprise benefited by the servitude. Unless authorized by the terms of the servitude, the holder is not entitled to cause unreasonable damage to the servient estate or interfere unreasonably with its enjoyment.


author: Justice KOURLIS

text:
    In the Matter of the Application for Water Rights of: WEST ELK RANCH, L.L.C., for Appellant, v. UNITED STATES of America, for Appellee.
    No. 02SA93.
    Supreme Court of Colorado, En Banc.
    Dec. 2, 2002.
    Phillip Ernest Anselmo, Montrose, Colorado, Attorney for Appellant.
    Sandra Slack Glover, U.S. Department of Justice Environment & Natural Resources Division, Washington, D.C., David W. Geh-lert, U.S. Department of Justice Environment & Natural Resources Division, Denver, Colorado, Attorneys for Appellee.
   Justice KOURLIS

delivered the Opinion of the Court.

I. Introduction

In this case, West Elk Ranch (“West Elk” or “the Ranch”) and its predecessors-in-interest sought a conditional water right to a spring located on adjacent National Forest land. The Forest Service denied a Special Use Permit (“SUP”) that would have allowed West Elk to capture the water on Forest land and divert it onto West Elk’s property. Accordingly, the water court granted summary judgment for the United States, denying the conditional water right because West Elk could not then meet the “can and will” requirement established for the issuance of conditional water rights. See § 37-92-305(9)(b), 10 C.R.S. (2002). West Elk now appeals the water court’s decision, arguing that it “can and will” eventually obtain an SUP. Because West Elk presented no evidence of a pending proceeding that could result in issuance of an SUP, we affirm the water court’s grant of summary judgment.

II. Facts and Procedural History

West Elk Ranch encompasses approximately 160 acres of land contiguous to National Forest land in Western Colorado. The Ranch comprises several uses including livestock, crops, and a dude ranch operation offering horseback riding, a trading store, and guide and outfitter services into the National. Forest.

Upon discovering a spring located on the adjacent National Forest land, the predecessors-in-interest to this action, Larry and Ruth Head, d/b/a/ Head Acres, Inc., filed for a conditional water right to use .01 cfs of the Bear Gulch Spring for stock and wildlife water, and for domestic use for up to four housing units and up to twenty campsites. Head Acres proposed to construct a spring box or collection facility on the Forest land and then divert the water through a piping system to the property now known as West Elk Ranch. Head Acres acknowledged that the application would require an SUP from the Forest Service prior to the construction of the diversion system, as the spring and the pipeline would lie on National Forest land. The United States Department of Justice (“DOJ”) filed a statement of opposition to Head Acres’ petition, stating that because Head Acres had not obtained an SUP, it could not legally divert the water off federally owned property. DOJ further expressed concern over the project’s environmental effects.

Some fifteen months later, Head Acres filed an application for an SUP with the Forest Service. The property was then sold to West Ridge Group, LLC, d/b/a West Elk Ranch, LLC. The Forest Service denied the SUP application because of concerns over the environmental impacts of the proposed construction of the collection facilities and pipeline. The Forest Service further noted that it believed the applicant had no need for the water, and eould meet its water needs with water from fee land. The denial letter stated that the applicant could submit additional information and ask for reconsideration if it truly had no alternatives on fee land. West Elk did provide the Forest Service with additional information to consider, but the Forest Service persisted in the denial. West Elk then challenged the denial and a Forest . Supervisor reviewed the proposal. The supervisor stated that he agreed with the denial, as the proposed project would unreasonably conflict with National Forest uses for the spring.

Based on these various denials, the water referee issued a proposed order denying the conditional water right, since West Elk could not put the water to beneficial use without the SUP. The United States then filed for summary judgment pursuant to C.R.C.P. 56(h) with the Water Court for Water Division No. 4. The court granted summary judgment in favor of the United States, thereby denying West Elk the conditional water right to the spring. In a written opinion, the court found that the denial of the SUP defeated West Elk’s obligation to show that it “can and will” put the water to beneficial use.

West Elk subsequently brought this appeal for review of the conditional water right denial.

III. Standard of Review

While the standard of review of a court’s grant of summary judgment is well-established, we set it forth here in order to frame the question we must address. Summary judgment is appropriate when the pleadings and supporting documentation demonstrate that no genuine issue of material fact exists and that the moving party is entitled to summary judgment as a matter of law. Martini v. Smith, 42 P.3d 629, 632 (Colo.2002); Vail/Arrowhead, Inc. v. Dist. Ct., 964 P.2d 608, 611 (Colo.1998). The appellate court reviews the grant of a summary judgment motion de novo, as it is ultimately a question of law. Martini, 42 P.3d at 632; Feiger, Collison & Killmer v. Jones, 926 P.2d 1244, 1250 (Colo.1996) (“ ‘All summary judgments are rulings of law in the sense that they may not rest on the resolution of disputed facts. We recognize this by our de novo standard of reviewing summary judgments.’ ’’)(quoting Black v. J.I. Case Co., 22 F.3d 568, 571 n. 5 (5th Cir.), cert. denied, 513 U.S. 1017, 115 S.Ct. 579, 130 L.Ed.2d 494 (1994)). The nonmoving party is entitled to the benefit of all favorable inferences from the undisputed facts, and all doubts as to the existence of a triable issue of fact must be resolved against the moving party. Martini, 42 P.3d at 632.

IV. Analysis

The statutes define a conditional water right as “a right to perfect a water right with a certain priority upon the completion with reasonable diligence of the appropriation upon which such water right is to be based.” § 37-92-103(6), 10 C.R.S. (2002). Such decrees “are designed to establish that the ‘first step’ toward the appropriation of a certain amount of water has been taken and to recognize the relation back of the ultimate appropriation to the date of that first step.” City of Aspen v. Colo. River Water Conservation Dist., 696 P.2d 758, 761 (Colo.1985). While the conditional decree system encourages investment in more expensive or time-consuming water projects by reserving priority dates for the appropriation of the water, the conditional rights are subject to scrutiny to prevent abuse and speculation. Dallas Creek Water Co. v. Huey, 933 P.2d 27, 35 (Colo.1997).

Indeed, the General Assembly eliminated a “wait and see” approach to determining conditional water rights. Instead, it opted to require an applicant to show in the conditional decree proceedings that it “can and will” complete the appropriation of water with diligence and within a reasonable time before a court may issue a conditional decree. FWS Land & Cattle Co. v. State Div. of Wildlife, 795 P.2d 837, 840 (Colo.1990). Section 37-92-305(9)(b) provides:

No claim for a conditional water right may be recognized or a decree therefor granted except to the extent that it is established that the waters can be and will be diverted, stored, or otherwise captured, possessed, and controlled and will be beneficially used and that the project can and mil be completed with diligence and within a reasonable time.

(emphasis added).

This court has interpreted that language on a number of occasions. In FWS, the Division of Wildlife and FWS owned adjacent parcels of land underlying two lakes. FWS sought a conditional direct flow right and a conditional storage right for the two lakes. The Division of Wildlife moved for summary judgment on the conditional storage right, claiming that FWS did not have and could not get the authority to increase the storage capacity of the lakes on state lands. FWS, 795 P.2d at 839. Because FWS was unable to gain the needed authorization due to its inability to condemn state lands, the state argued that FWS could not meet the standards set forth in section 37-92-305(9)(b).

We concluded that the ownership of the underlying lands and the right to use those lands for storage purposes were appropriate considerations for the water court in determining whether to grant a conditional right. Id. at 840. This court explained that the enactment of section 37-92-305(9)(b) requires an applicant to prove by a preponderance of the evidence that it will complete the appropriation with diligence and within a reasonable period of time. Id.; see also City of Thornton v. Bijou Irrigation Co. 926 P.2d 1, 42-43 (Colo.1996)(construing the ‘can and will’ statute as requiring a conditional water rights applicant to establish that there is a substantial probability that within a reasonable time the facilities necessary to effect the appropriation can and will be completed with diligence, and that as a result waters will be applied to a beneficial use). Because FWS could not obtain consent from the Division of Wildlife or condemn access, it could not put the water to beneficial use and therefore it had no ability to complete the project within a reasonable time.

West Elk argues that the case at hand is more akin to the facts presented in In re Gibbs, 856 P.2d 798 (Colo.1993). In Gibbs, the applicant sought a conditional water right for the withdrawal and diversion of water from a well located on another owner’s land. The water court granted the right, over the landowner’s opposition. The landowner appealed. This court held that while the water court was required to consider whether Gibbs could legally gain access to the property necessary to capture and divert the decreed water, Gibbs did not have to finally establish her right of access to the property prior to obtaining a conditional decree. Id. at 801. Unlike in FWS where the applicant made no showing of an ability to obtain the necessary permission, here the water court found that Gibbs had demonstrated that she could gain access to the property by means of a previously granted easement or private condemnation. Id. Hence, the water court found that Gibbs had met the burden of establishing by a preponderance of the evidence that she could and would be able to develop the conditionally granted water right, and this court agreed. Id.

Here, we have to determine if West Elk has made the requisite showing that it “can and will” develop the water pursuant to its plan. Because the Forest Service’s denial of the SUP eliminates the only alternative available to West Elk, this ease is more similar to FWS than to In re Gibbs.

West Elk argues that it still may obtain a permit; however, there is no evidence in the file indicating a pending appeal or other proceeding that will potentially result in the issuance of an SUP to West Elk.

The Federal Land Policy and Management Act of 1976, and the regulations that implement the Act, grant the Forest Service the authority to issue Special Use Permits for National Forest land. 43 U.S.C. § 1761(a)(1) (2002), 36 C.F.R. § 251.53(0(1)- Applicants must seek a permit from the Forest Ranger or Supervisor with jurisdiction over the affected area, but the application itself does not convey any use rights. 36 C.F.R. § 251.54(b),(e). Upon receipt of the application, the Forest Service does an initial screening for minimum requirements. 36 C.F.R § 251.54(e)(1). If the applicant cannot meet the minimum standards, the Forest Service will deny the application without further consideration. Id. Here, the Forest Service District Ranger denied West Elk’s SUP application because it failed to meet a minimum requirement that the SUP cannot conflict or interfere with National Forest uses. Id. Upon review, the Supervisor agreed.

Without an SUP, West Elk cannot put the water to beneficial use. West Elk presented insufficient evidence to the water court to demonstrate a substantial probability that it will eventually obtain an SUP. Accordingly, the water court properly granted summary judgment against West Elk.

Y. Conclusion

We conclude that, for the purposes of the water court decision, there was no material question of disputed fact — the Forest Service denied West Elk the SUP that would make the appropriation of the water possible, and West Elk presented no evidence that the decision might be overturned. Based on this denial, West Elk could not meet the “can and will” requirement found in section 37-92-305(9)(b). We, therefore, affirm the water court’s denial of West Elk’s application for a conditional water right.

      . West Elk filed appropriate paperwork in order to substitute parties for the conditional water right application in water court, but never submitted an SUP application under its name or asked for a substitution of parties on the SUP application.

      . The parties had stipulated that the state owned 90% of the underlying land and FWS owned the remaining 10%.

      . The appeals process for the denial of Special Use Permits is clearly delineated at 36 C.F.R. part 251, subpart C (2002). An applicant has two levels of appeal to contest a decision made by a District Forest Ranger. 36 C.F.R. § 251.87(c). First, West Elk could appeal the District Ranger's decision to the Forest Supervisor. Id. West Elk did indeed seek review from the Forest Supervisor, who agreed with the District Ranger’s denial of the SUP application and issued a written letter to that effect on December 18, 2001. Second, West Elk could appeal the decision to the Regional Forester within 15 days of the decision from the Supervisor. Id. West Elk presented no evidence that it sought this second level of review. West Elk did attach as an appendix to the "Notice of Appeal of Water Right Denial,” a "Notice of Administrative Appeal of Special Use Permit Denial,” dated January 24, 2002, addressed to the appeals office of the United States Forest Service. Since the Supervisor issued the first level appeal decision on December 18, 2001, West Elk apparently missed the 15-day deadline. Because we have nothing in the record to indicate that such appeal is pending, we presume the Forest Supervisor's decision to be final.