text:
    2004 UT App 212
    STATE of Utah, Plaintiff and Appellee, v. Nathaniel F. PENN, Defendant and Appellant.
    No. 20030638-CA.
    Court of Appeals of Utah.
    June 24, 2004.
    Rehearing Denied July 20, 2004.

      Ann Marie Taliaferro and James C. Bradshaw, Brown Bradshaw Anderson & Moffat, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney General and Marian Decker, Assistant Attorney General, Salt Lake City, for Appellee.
    Before Judges BENCH, GREENWOOD, and ORME.
   OPINION

GREENWOOD, Judge:

¶ 1 Defendant, Dr. Nathaniel Penn, appeals his conviction of three enhanced second degree felony counts of Unlawful Possession of a Controlled Substance in a Drug-Free Zone, in violation of Utah Code Annotated sections 58 — 37—8(2)(a)(i) (Supp.2003) and 58-37-8(4)(a) (Supp.2003). Penn argues that this court should reverse and remand for a new trial because (1) evidence obtained as a result of an invalid anticipatory warrant should have been excluded; (2) one of the jury instructions was plainly erroneous and denied Penn his right to a fair trial; (3) the State failed to disclose material information; (4) the trial court admitted prejudicial and irrelevant evidence of Penn’s prior bad acts; and (5) the trial court failed to exclude statements obtained in violation of Penn’s Miranda rights. We affirm in part and reverse in part.

BACKGROUND

¶ 2 Penn, a medical doctor, operated a small medical clinic in Moab, Utah, until the end of March 2002, when it closed for financial reasons unrelated to this case. Penn employed Lisa LaPlante in his office for approximately six months prior to closing. In early 2002, LaPlante contacted law enforcement regarding Penn’s alleged illicit drug-related activities. After being contacted by the Drug Enforcement Agency (DEA) and the county attorney, LaPlante agreed to become a confidential informant. In exchange for her cooperation in providing information about Penn’s drug activities, LaPlante was given $500 by the DEA, and a domestic violence felony assault charge against her husband was ultimately reduced to a charge of brandishing a firearm.

¶ 3 LaPlante informed law enforcement personnel of observations made while working with Penn at his clinic. For example, she heard Penn tell patients to return their unused medication to his office. Additionally, on at least two occasions, Penn gave some of the returned medication to LaPlante’s husband to treat his bad back. LaPlante also told the authorities that she had observed Penn sleeping in the back room of the clinic with a tourniquet and bent needles on the floor. At other times, she said he would act “weird” and “walk almost into walls.” La-Plante also told of one specific time when Penn’s girlfriend, who also worked at the clinic, told her that the clinic was going to be closed the next day because she and Penn were going to “go do mushrooms.”

¶ 4 In late April, DEA Agent Johnson and LaPlante met and discussed having LaPlante talk to Penn about mushrooms. Later, while wearing a hidden recording device, LaPlante met with Penn and told him her brother was in town and wanted her to take hallucinogenic mushrooms with him. She asked if it would be safe. Penn responded that “he had taken them plenty of times,” and that “he had done them in the clinic.” As LaPlante was leaving the meeting, Penn twice said that if her brother had extra mushrooms, he would like to buy them. Later, while visiting Penn’s girlfriend at her and Penn’s home, LaPlante observed a vial of Demerol in their refrigerator. On yet another visit when neither Penn nor his girlfriend was home, La-Plante observed a prescription bottle of Hy-drocodone for a patient in Penn’s bathroom medicine cabinet.

¶ 5 In part as a result of the information obtained from LaPlante, Agent Johnson prepared an anticipatory search warrant to search the Penn residence. The affidavit of probable cause stated:

On April 20, 2002, between 1000 and noon, DEA agents will meet with Cl [ (confidential informant)]. Cl and an undercover agent (UC) will be searched and Cl will be wired. Cl or UC will be given some Psilo-cybin mushroom. Cl’s vehicle will also be searched. Cl and an undercover agent will drive in Cl’s vehicle to the above described residence of Penn and Drew with the mushrooms. Agents will have Cl and UC under visual and audio observation at all times driving to and from said residence. They will have Cl and UC under audio observation while they are in the residence. It is anticipated that Cl and UC will offer Penn and/or Drew the mushrooms for sale for either cash and/or controlled substance prescriptions. After Cl and UC leave the residence, Cl and UC and Cl’s vehicle will be researched.

Based on this affidavit, the magistrate determined there was probable cause to believe that psilocybin mushrooms and other narcotics would be discovered inside Penn’s residence and issued the anticipatory search warrant.

¶ 6 On April 20, 2002, LaPlante and a DEA agent, acting as her brother, met with Penn at Penn’s home. The agent asked if Penn was interested in buying some mushrooms or trading mushrooms for Hydrocodone. Penn was not interested in the trade, but did purchase two bags of hallucinogenic mushrooms. After making the mushroom exchange, La-Plante and the agent left. Law enforcement officers, who heard the exchange, moved in immediately to execute the anticipatory search warrant. After initially denying it, Penn eventually admitted buying the mushrooms and indicated that they could be found in the kitchen drawer. The search of Penn’s home also yielded a prescription bottle containing eight Hydrocodone tablets, and a vial containing about 15 milliliters of Demerol.

■ ¶ 7 Penn was thereafter charged with three enhanced second degree felony counts of Unlawful Possession of a Controlled Substance in a Drug-Free Zone, in violation of Utah Code Annotated sections 58-37-8(2)(a)(i) (2002), and 58-37-8(4)(a) (2002). Prior to trial, Penn moved for suppression of the physical evidence seized. He alleged that the anticipatory search warrant was invalid. After reviewing transcriptions and recordings of the conversations, and hearing arguments, the trial court denied the motion to suppress. After a jury trial, Penn was convicted on all three counts. Following his convictions, Penn filed a motion for a new trial which the trial court denied. Penn then filed a timely notice of appeal. ■

ISSUES AND STANDARDS OF REVIEW

¶ 8 Penn first argues that the magistrate erred in issuing an anticipatory search warrant. When analyzing this question, we look to see if “ ‘the magistrate had a substantial basis for ... [determining] that probable cause existed.’ ” State v. Buford, 820 P.2d 1381, 1384 (Utah Ct.App.1991) (alterations in original) (quoting Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)) (other quotations and citation omitted). “Our review of the affidavit in support of the search warrant focuses on whether the magistrate had a substantial basis for concluding that there were enough facts within the affidavit to find that probable cause existed.” State v. Womack, 967 P.2d 536, 543 (Utah Ct.App.1998) (quotations and citations omitted). “We therefore review the affidavit as a whole and with a ‘common sense’ orientation, deferring to the magistrate’s decision.” Id. (citation omitted).

¶ 9 Penn next argues that one of the jury instructions was plainly erroneous and denied Penn his right to a fair trial. Because “a trial court’s decision to use a jury instruction may be alleged to have impacted the defendant’s right to a fair trial, ... such a conclusion would be reviewed for correctness.” State v. Daniels, 2002 UT 2,¶ 17, 40 P.3d 611.

¶ 10 Finally, Penn argues that the trial court improperly denied his motion for a new trial. “We review the legal standards applied by the trial court for correctness. Otherwise we review a trial court’s denial of a motion for new trial under an abuse of discretion standard.” State v. Bakalov, 1999 UT 45,¶ 28, 979 P.2d 799.

ANALYSIS

I. Validity of Anticipatory Search Warrant

¶ 11 Penn argues that the anticipatory search warrant issued in this ease was invalid, and the evidence obtained from it should have been excluded. There are two general requirements for a valid anticipatory search warrant. First, it must be supported by probable cause, and second, the warrant or supporting affidavit must clearly set forth conditions precedent or triggering events to the warrant’s execution. See State v. Womack, 967 P.2d 536, 543 (Utah Ct.App.1998). These two requirements are necessarily related because unlike traditional warrants, “[p]robable cause to support anticipatory warrants is conditioned on the occurrence of certain expected or ‘triggering’ events, typically the future delivery, sale or purchase of contraband.” Id. (quotations and citations omitted). “An anticipatory warrant is invalid if the ‘triggering event’ does not arise.” Id.

¶ 12 Penn argues that because the affidavit supporting the warrant did not specify that the triggering event would be Penn’s purchase or acceptance of the mushrooms, the affidavit’s express language failed to create probable cause. However, this court rejected a similar argument in Womack. See id. at 545. In that case, the police sought an anticipatory warrant to search a home after there was a controlled delivery of a UPS package that was addressed to defendant and contained a controlled substance. See id. at 539. The defendant argued on appeal that the anticipatory warrant lacked probable cause because the triggering event did not specifically require the delivery of the package to him. See id. at 545. He also argued that the police did not investigate whether he lived at the residence. See id. In rejecting these arguments, this court said, “[bjecause the police ... stated plans [in the affidavit] for a controlled delivery of the package, the magistrate could reasonably conclude the marijuana would be at the ... address when the search took place, establishing the necessary nexus for probable cause.” Id.

¶ 13 Furthermore, a magistrate’s finding of probable cause in support of an anticipatory search warrant is determined from the “totality of the circumstances.” State v. Buford, 820 P.2d 1381, 1384 (Utah Ct.App.1991). “ ‘[T]he task of the issuing magistrate is simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.’ ” Id. at 1385 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)).

¶ 14 The affidavit in this case specifically describes a recorded conversation between LaPlante and Penn which occurred approximately two weeks prior to the arrest. Wearing a recording device, LaPlante went to Penn’s home and told Penn that her brother was in town and wanted her to do mushrooms with him. LaPlante then asked Penn about the side effects of taking mushrooms. Based on his past experience using mushrooms, Penn told LaPlante how she would feel after using mushrooms. As LaPlante was leaving, Penn made the following offers to purchase mushrooms from LaPlante’s brother: “If he stocked any extra, we’ll buy it,” “if he’s got any extra, I’ll buy some from him,” and “enough for two of us.” The affidavit then describes the anticipated controlled sale of mushrooms to Penn. The affidavit states in part:

They [agents] will have Cl [ (confidential informant) ] and UC [ (undercover agent) ] under audio observation while they are in the residence. It is anticipated that Cl and UC will offer Penn and/or Drew the mushrooms for sale for either cash and/or controlled substance prescriptions. After Cl and UC leave the residence, Cl and UC and Cl’s vehicle will be researched.

¶ 15 When this portion of the affidavit is read together with the background supporting facts, a “practical, common sense” interpretation is that Penn’s acceptance or purchase of contraband would be the event providing probable cause that Penn was in possession of mushrooms. Buford, 820 P.2d at 1385. Although the affidavit did not expressly list this as the “triggering event,” “given all the circumstances set forth in the affidavit ..., there [was] a fair probability that contraband or evidence of a crime [would] be found” in Penn’s home after the controlled sale was made. Id. at 1385.

¶ 16 As Penn correctly points out, we have previously held that “the conditions controlling the warrant’s execution should be explicit, clear, and narrowly drawn so as to avoid misunderstanding or manipulation by government agents.” Womack, 967 P.2d at 544 (quotations and citations omitted). However, we also stated that “the specificity with which the magistrate should state the conditions dictating the warrant’s execution will shift depending on the facts of each case.” Id. Here, Penn’s previous offer to buy mushrooms from LaPlante’s brother, combined with his stated knowledge of, experience with, and interest in buying and using mushrooms, all set forth in the affidavit, provided the magistrate with a “substantial basis for ... concluding that probable cause existed.” Buford, 820 P.2d at 1384.

¶ 17 Based on a “practical, common sense” reading of the facts and anticipatory events outlined in the affidavit, Id. at 1385, and giving appropriate deference to the magistrate’s determination, we hold that the probable cause requirement “that a nexus exist between the contraband and the search location” was satisfied in this case. Womack, 967 P.2d at 545. We therefore affirm the trial court’s rulings regarding the validity of the warrant.

II. Propriety of Jury Instruction

A. Invited Error

¶ 18 Penn next argues that the trial court erred by giving an erroneous jury instruction, thereby denying him a fair trial. Penn contends that the last sentence of jury instruction 6 misstated the elements of the drug possession charge. Instruction 6 stated:

Physicians licensed to prescribe controlled substances must still obtain a prescription for any controlled substance for personal use. Physicians licensed to dispense or administer controlled substances are also permitted to possess reasonable quantities of controlled substances for dispensing or administering to patients, but they are required to keep a record of controlled substances received for that purpose and dispensed or administered by them as physicians. A physician who fails to comply with this requirement possesses those substances illegally.

(Emphasis added.)

¶ 19 The State’s only argument in response is that if the trial court erred in using this instruction language, it was invited error. The State contends that Penn’s trial counsel affirmatively approved instruction 6. Under the invited error doctrine, “ ‘a party cannot take advantage of an error committed at trial when that party led the trial court into committing the error.’ ” State v. Geukgeuzian, 2004 UT 16, ¶ 9, 86 P.3d 742 (citation omitted). A jury instruction “may not be assigned as error ... ‘if counsel either by statement or act, affirmatively represented to the court that he or she had no objection to the jury instruction.’ ” Id. (citation omitted).

¶ 20 In support of its argument, the State points to the trial record where a discussion took place regarding the trial court’s proposed language for instruction 6. After reading the proposed language to counsel, the trial court asked: “That sound about right to you? (Inaudible) actual language?” Then, Penn’s trial counsel, Mr. Skordas, stated: “Right. I think so.” The trial court then stated that counsel could pick up copies of the typed instructions later that day. The State argues that this reflects not only a failure to object to the instruction, but also an affirmative agreement with its use. However, the State fails to acknowledge other parts of the record which support Penn’s argument that he objected to the instruction.

¶ 21 The record reflects that after the discussion about the proposed instruction language, Mr. Skordas asked the trial court, “Do you want to have a time where we will make our objections?” In response, the court scheduled objections for 7:30 the following morning, at which time, Mr. Skordas informed the judge that he had “a few” objections to the proposed instructions. Mr. Skordas then requested one change to what was later designated instruction 5, which the court accepted. Then the record reflects the following:

Mr. Skordas: — I would ask the court to strike the very last sentence.
The Court: Why?
Mr. Skordas: Well, because the law, I think what the Court’s attempted to do is to restate the statute, and the statute speaks for itself.
The Court: So you want me to give the statute to the jury to read?
Mr. Skordas: No, no. I want you to quit at the end of the statute, which is what you would have done had you not added that last sentence. That sort of is the statute. You paraphrased it, but I think in a way that makes sense logically to the jurors, and that would be my only request with respect to that instruction.

¶ 22 The trial court then denied Mr. Skor-das’s requested change. Because the proposed instructions being discussed were not numbered at the time, it is not clear precisely which instruction they were discussing. However, Mr. Skordas’s concerns about the last sentence of the instruction restating and rephrasing the statute logically only fit with what was later designated as jury instruction 6.

¶23 While the State is correct that Mr. Skordas initially seemed to agree with the instruction language, his subsequent actions clearly reflect that it was only a tentative agreement. This was confirmed the next day when he asked the trial court to remove the last sentence of the instruction. By asking for this change, we cannot say that Penn “led the trial court into committing the error” which he now appeals. Geukgeuzian, 2004 UT 16 at ¶ 9, 86 P.3d 742 (quotations and citation omitted). Therefore, we reject the State’s argument that Penn invited the alleged error he is now challenging.

B. Trial Court Error

¶ 24 We next address Penn’s argument that it was error for the trial court to include the last sentence of jury instruction 6. Penn contends that by offering instruction 6, the court equated the failure to keep adequate administrative records, as required by law, with the felony offense of unlawful possession. We agree. “The plain language of a statute is to be read as a whole, and its provisions interpreted in harmony with other provisions in the same statute and with other statutes under the same and related chapters.” State v. MacGuire, 2004 UT 4,¶ 15, 84 P.3d 1171 (quotations and citation omitted).

¶ 25 Under Utah Code Annotated section 58-37-8(2)(a)(i) (Supp.2003), it is a third degree felony for anyone

knowingly and intentionally to possess or use ... a controlled substance, unless it was obtained under a valid prescription or order, directly from a practitioner while acting in the course of his professional practice, or as otherwise authorized by this chapter.

Id. In this case, the penalty was enhanced to a second degree felony because the possession occurred in a school zone. See id. § 58-37-8(4)(a) (Supp.2003).

¶ 26 Utah law provides that medical practitioners may possess controlled substances “to the extent authorized by their license and in conformity with this chapter.” Id. § 58-37-6(2)(b) (Supp.2003). Chapter 37 also requires licensed persons to maintain records and inventories of the controlled substances in their possession. See id. § 58-37-6(5)(a). However, Chapter 37 does not provide a specific penalty for the violation of this record-keeping provision. By including the last sentence in instruction 6, the trial court improperly instructed the jury that a practitioner’s failure to keep adequate administrative records of the controlled substances in his possession constituted “illegal possession,” a third degree felony. See id. § 58-37-8(2)(b)(ii). While practitioners’ possession must be “authorized by their license,” id. § 58-37-6(2)(b), the statute does not contemplate that a practitioner face a third, or possibly second, degree felony for failing to keep adequate or sufficient records.

¶ 27 By instructing the jury that “[a] physician who fails to comply with this [record-keeping] requirement possesses those substances illegally,” the trial court affirmatively indicated to the jury that they could convict Penn of the second degree felony for failing to keep sufficient administrative records. This instruction diverted the attention of the jury from deciding whether the State had proved the statutory elements of the unlawful possession charge. For these reasons, the trial court erred by including the last sentence of instruction 6, as well as the preceding phrase regarding physician record-keeping requirements.

C. Was the Error Harmful?

¶ 28 Finally, we examine whether the trial court’s error was harmful to Penn. An error is prejudicial if it tends to “mislead the jury to the prejudice of the complaining party or insufficiently or erroneously advise[ ] the jury on the law.” Laws v. Blanding, 893 P.2d 1083, 1086 (Utah Ct.App.1995) (quotations and citations omitted).

¶ 29 Here, the trial court’s erroneous instruction directed the jury to convict Penn if they found that he had failed to properly keep administrative records. Absent this instruction, and the trial court’s improper legal conclusion, there is a reasonable likelihood that the outcome would have been more favorable for Penn because the jury may have otherwise concluded that Penn, as a physician, was authorized to possess the prescribed controlled substances. Therefore, we agree with Penn that his right to a fair jury trial was probably affected by the trial court’s improper instruction.

¶ 30 Because we find that the trial court erred by including the last sentence of jury instruction 6, we reverse Penn’s conviction on the two counts of Unlawful Possession of a Controlled Substance in a Drug-Free Zone for Penn’s possession of Demerol and Hydro-codone. However, because instruction 6 did not affect the jury’s determination of Penn’s unlawful possession of psilocybin mushrooms, our reversal on the two prescription counts will not disturb Penn’s conviction on the mushroom count.

III. State’s Failure to Disclose Information

¶ 31 Penn next argues that his motion for a new trial was wrongly denied because the State failed to provide him evidence about the cooperation agreement between LaPlante and the county attorney and the DEA. A defendant is entitled to receive from the prosecution any exculpatory or impeaching evidence. See Strickler v. Greene, 527 U.S. 263, 280, 119 S.Ct. 1936, 1948, 144 L.Ed.2d 286 (1999). The defendant is entitled to relief if he can show that the prosecution’s failure to disclose resulted in prejudice. See id. at 281-82, 119 S.Ct. at 1948.

¶ 32 It is clear that the State failed to fulfill its duty to disclose all of the information pertaining to LaPlante’s agreements with law enforcement. Due to our disposition of the Hydrocodone and Demerol charges, we need only determine whether the State’s failure to disclose prejudiced Penn’s right to a fair trial on the charge of unlawful possession of psilocybin mushrooms. We conclude it did not. The mushroom charge was based on Penn’s unlawful possession following the undercover sale at his home. At trial, Penn’s only defenses to the possession charge were the invalidity of the search warrant, and entrapment by law enforcement. We have previously sustained the anticipatory search warrant leading to the undercover sting operation, and Penn has not argued the issue of entrapment on appeal. Therefore, LaPlante’s testimony was irrelevant and unnecessary to Penn’s conviction on this charge. Because the information withheld by the State would only go to the impeachment of LaPlante, its failure to disclose did not prejudice Penn’s right to a fair trial on the mushroom possession charge.

CONCLUSION

¶ 33 The probable cause requirement for the anticipatory search warrant was satisfied in this case based upon a commonsense reading of the search warrant and supporting affidavit. We therefore affirm the trial court’s rulings regarding the validity of the anticipatory warrant.

If 34 Penn’s challenge to instruction 6 was not invited error because Penn’s trial counsel clearly raised his concerns with the trial court and did not acquiesce in the instruction. For the reasons explained above, it was error for the trial court to give instruction 6 to the jury. Therefore, Penn’s conviction as to the two counts of unlawful possession of Demerol and Hydrocodone are reversed. Because we uphold the validity of the anticipatory search warrant, Penn’s conviction for unlawful possession of psilocy-bin mushroom is affirmed.

¶ 35 WE CONCUR: RUSSELL W. BENCH, Associate Presiding Judge and GREGORY K. ORME, Judge.

      . Although the statutes cited have been amended since Penn was charged, the amendments do not affect the outcome of this case. Therefore, for ease of reference, we cite to the most recent version of the statutes.

      . As to Penn's two arguments for a new trial, we affirm the actions of the trial court. First, "in reviewing a trial court's decision to admit or exclude evidence, we allow for broad discretion.” Jensen v. Intermountain Power Agency, 1999 UT 10,¶ 12, 977 P.2d 474. Penn has not shown how the trial court abused its discretion by admitting the few statements to which Penn properly objected. Second, Penn has failed to adequately brief his argument that statements made in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), should have been excluded. Penn fails to provide this court with the necessary facts and legal support to make the requisite determination. See Smith v. Smith, 1999 UT App 370, ¶ 8, 995 P.2d 14 ("An issue is inadequately briefed when 'the overall analysis of the issue is so lacking as to shift the burden of research and argument to the reviewing court.' " (citation omitted)).

      . LaPlante's story of her brother coming to town and wanting to do mushrooms was fabricated by the DEA agent and LaPlante in order to later conduct a controlled sale of mushrooms using an undercover DEA agent to act as LaPlante's brother.

      . Penn also argues that the warrant was invalid because some of the events outlined in the affidavit, which were to occur after the sale, did not actually occur. We have determined that the triggering event establishing probable cause was Penn's purchase or acceptance of the mushrooms. Furthermore, because the agents executing the warrant were simultaneously listening to the sale, they were aware of the exact moment the sale occurred and probable cause was established. Therefore, because probable cause existed prior to the time the other events were to occur, they were not necessary to establish probable cause. See State v. Womack, 967 P.2d 536, 543 (Utah Ct.App.1998) (stating that the likelihood of the triggering events occurring is what creates probable cause).

      . It should also be noted that in denying Penn's motion for a new trial based on this flawed instruction, the trial court implied that Mr. Skor-das had agreed to the instruction’s language. Because the record shows that Mr. Skordas raised questions about this instruction, the trial court erred in using this reasoning to deny the motion.

      . Penn captions this section of his brief as "The Jury Instructions Were Plainly Erroneous.” However, his analysis is under a standard error, not plain error, theory. We therefore address the issue as standard error.

      . The "unauthorized possession” statute is enhanced to a second degree felony if committed within a school zone, near childcare facilities, public parks, houses of worship, shopping malls, sports facilities, theaters, or other public places. See Utah Code Ann. § 58-37-8(4) (Supp.2003). The fact that many practitioners' clinics are found in cities and towns near these types of public establishments is further support that this chapter was not intended to impose a second degree felony on the practitioner whose office makes any kind of record-keeping error.

      . We have also rejected Defendant's Miranda argument. See footnote 2.


source: Caselaw Access Project

author: KITE, Justice.

license: Public Domain

text:
    2004 WY 84
    PEDRO/ASPEN, LTD., a Wyoming Limited Partnership, Appellant (Plaintiff), v. BOARD OF COUNTY COMMISSIONERS FOR NATRONA COUNTY, Wyoming, a political subdivision of the State of Wyoming, Appellee (Defendant).
    No. 02-236.
    Supreme Court of Wyoming.
    July 16, 2004.

      Representing Appellant: Richard W. Walden and Robert D. Singletary of Budd-Falen Law Offices, P.C., Cheyenne, Wyoming.
    Representing Appellee: R. Michael Shic-kich, Casper, Wyoming and Eric A. Easton, Natrona County Attorney, Casper, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   KITE, Justice.

[¶ 1] Pedro/Aspen, Ltd. (Pedro/Aspen) sought to subdivide land it had acquired through a contract for deed into parcels larger than thirty-five acres. The Natrona County Board of County Commissioners (Na-trona County) required that Pedro/Aspen obtain approval for the subdivision pursuant to its zoning regulations. Contending Natrona County did not have the authority to regulate the division of land into parcels greater than thirty-five acres, Pedro/Aspen sought a declaratory judgment to that effect. The district court determined Pedro/Aspen did not have standing to maintain its action, but proceeded, upon stipulation of the parties, to determine Natrona County’s zoning regulation for “major land subdivisions” was within the authority granted to counties by the legislature. We disagree with both conclusions and reverse.

ISSUES

[¶ 2] Pedro/Aspen poses the following issues for our consideration:

A. Whether Pedro/Aspen, Ltd. has standing to bring a Declaratory Judgment Act claim challenging the validity of Chapter IX of the Natrona County Zoning Resolution (“NCZR”).
B. Whether Chapter IX of the NCZR is a proper exercise of county zoning authority.

[¶ 3] Natrona County’s view of the issues is quite similar:

A. Whether Natrona County has the authority to regulate the division of land pursuant to the exercise of its zoning authority.
B. Whether Pedro/Aspen has standing to seek judicial relief.

FACTS

[¶ 4] Natrona County adopted a zoning resolution entitled “Major Land Subdivisions,” which purports to require approval of any division of land into parcels that are between thirty-five acres and eighty-acres in size. On or about October 8,1999, Pedro/Aspen entered into an agreement with Robinett Property Holdings, LLC for the sale of certain real property in Natrona County and recorded a document entitled “Notice of Execution of Agreement.” Beginning November 9, 1999, Pedro/Aspen began selling individual forty-acre parcels and executing agreements entitled “Standard Agreement for Sale of Real Estate” with individual buyers. Simultaneously, Pedro/Aspen submitted the following letter, together with a major land division application, to the Natrona County Planning Department (Planning Department):

Enclosed please find our application for a major land division.
By way of background, we have been in business for over 30 years and have never been involved in a lawsuit with a government agency or with anyone who has ever purchased land from us. Our market is primarily people who wish to speculate on land or simply want to own a “piece of the West” and not necessarily for residential use.
Since 1989 we have owned the Aspen Highlands subdivision west of Casper near Garfield Peak. One of our owners in this subdivision is Congresswoman Barbara [Cubin].
Should you need any additional information, please feel free to contact me.

Natrona County began receiving calls from individuals requesting information as to what was necessary to construct residences on the property.

[¶ 5] The Planning Department reviewed the application and directed a report to the Chairman of the Natrona County Zoning and Planning Commissioners on January 25, 2000, recommending that the preliminary plat be approved subject to a list of sixteen contingencies. One of those contingencies was that the record title owner of the subject property, Robinett Property Holdings, LLC, also sign the application. Natrona County intended to consider the application on February 15, 2000, but the applicant asked that it be postponed until Natrona County’s March Y, 2000, meeting. By letter dated February 22, 2000, the Planning Department notified the applicant that the Board had passed a resolution instituting a moratorium on major land divisions in Natrona County.

[¶ 6] On March 3, 2000, Pedro/Aspen filed a complaint for declaratory and injunc-tive relief in the district court, contending that Chapter IX of the Natrona County Zoning Resolution (NCZR) was in direct contravention of Wyoming law and, therefore, ultra vires and of no force and effect. In addition, Pedro/Aspen asked that Natrona County be enjoined from enforcing Chapter IX. On June 16, 2000, Pedro/Aspen filed a motion for partial summary judgment on the issue of the validity of NCZR, Chapter IX. In its response, Natrona County contended Pedro/Aspen did not have standing to challenge the regulation and the statutes granted it ample authority to adopt the same. The parties stipulated that the district court could decide the motion for partial summary judgment based on the briefs and without oral argument. In a letter opinion dated March 4, 2002, the district court concluded Pedro/Aspen did not have standing to challenge the regulation because it was not the record owner of the property. However, it also found it was “appropriate to decide the issue on the merits.” The court then declined to rule that NCZR, Ch. IX, was invalid and on April 23, 2002, it issued an order denying Pedro/Aspen’s motion for partial summary judgment. Pedro/Aspen filed an amended complaint, alleging additional claims that Natrona County’s actions constituted arbitrary and capricious agency action, inverse condemnation (which included Pedro/Aspen’s assertion that Natrona County could not require that the owner of record of the lands in question also sign the land division application), an uncompensated taking, an unconstitutional condition (that being the requirement that the owner of record sign the application), inverse condemnation and an uncompensated taking (based on Natrona County’s requirement that lots visible from U.S. Highway 20/26 could not be developed), and an unconstitutional condition (Natrona County’s requirement that Pedro/Aspen construct county roads). Ultimately, the parties stipulated to dismissal of the additional claims in the amended complaint and to entry of judgment in favor of Natrona County on the issue of the validity of NCZR, Chapter IX. The district court issued its judgment consistent with the stipulation. Pedro/Aspen timely appealed that judgment.

STANDARD OF REVIEW

[¶ 7] This matter is before us for review of the district court’s judgment as a matter of law. Where a judgment raises only issues of law, we review the matter de novo without affording any deference to the decision of the district court. Union Pacific Resources Co. v. Dolenc, 2004 WY 36, ¶ 4, 86 P.3d 1287, ¶ 4 (Wyo.2004); Wadi Petroleum, Inc. v. Ultra Resources, Inc., 2003 WY 41, ¶ 10, 65 P.3d 703, ¶ 10 (Wyo.2003); Mathewson v. City of Cheyenne, 2003 WY 10, ¶ 4, 61 P.3d 1229, ¶ 4 (Wyo.2003); Stoneking v. Wheatland Rural Electric Ass’n., 2003 WY 81, ¶ 9, 72 P.3d 272, ¶ 9 (Wyo.2003).

1.Standing

[¶8] On appeal, Natrona County reasserted its claim that Pedro/Aspen lacked standing to litigate the issue of the validity of NCZR, Chapter IX, under the Declaratory Judgments Act and we address that issue first. We have described the concept of standing in these terms:

Standing is a legal concept designed to determine whether a party is sufficiently affected to insure that the court is presented with a justiciable controversy.

Jolley v. State Loan and Investment Board, 2002 WY 7, ¶ 6, 38 P.3d 1073, ¶ 6 (Wyo.2002) (citations omitted).

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

Id. (quoting Roe v. Board of County Commissioners, Campbell County, 997 P.2d 1021, 1022-23 (Wyo.2000)).

[¶ 9] We generally do not relax the standing requirement in the context of an action under the Uniform Declaratory Judgments Act, but require:

1. The parties must have existing and genuine, as distinguished from theoretical, rights or interests.
2. The controversy must be one upon which the judgment of the court may effectively operate, as distinguished from a debate or argument evoking a purely political, administrative, philosophical or academic conclusion.
3. It must be a controversy the judicial determination of which will have the force and effect of a final judgment in law or decree in equity upon the rights, status or other legal relationships of one or more of the real parties in interest, or, wanting these qualities to be of such great and overriding public moment as to constitute the legal equivalent of all of them.
4. The proceedings must be genuinely adversary in character and not a mere disputation, but advanced with sufficient militancy to engender a thorough research and analysis of the major issues.

Department of Revenue and Taxation v. Pacificorp, 872 P.2d 1163, 1168 (Wyo.1994) (citations omitted); Riedel v. Anderson, 2003 WY 70, ¶¶ 18-19, 70 P.3d 223, ¶¶ 18-19 (Wyo.2003); also see Cox v. City of Cheyenne, 2003 WY 146, ¶ 10, 79 P.3d 500, ¶ 10 (Wyo.2003); Director of the Office of State Lands & Investments v. Merbanco, Inc., 2003 WY 73, ¶¶ 12-14, 70 P.3d 241, ¶¶ 12-14 (Wyo.2003); Sinclair Oil Corporation v. Wyoming Public Service Commission, 2003 WY 22, ¶¶ 10-13, 63 P.3d 887, ¶¶ 10-13 (Wyo.2003); Union Pacific Railroad v. Trona Valley Federal Credit Union, 2002 WY 165, ¶¶ 8-10, 57 P.3d 1203, ¶¶ 8-10 (Wyo.2002); Kroenlein v. Eddington, 2001 WY 115, ¶ 11, 35 P.3d 1207, ¶ 11 (Wyo.2001); In re Estate of Peters, 2001 WY 71, ¶ 10, 29 P.3d 90, ¶ 10 (Wyo.2001); and Hirschfield v. Board of County Commissioners of the County of Teton, 944 P.2d 1139, 1142-43 (Wyo.1997).

[¶ 10] The fundamental question is whether the litigant has a “tangible interest” at stake in the controversy. In this matter, the controversy centers on the authority of Natrona County to regulate the subdivision of land into parcels greater than thirty-five acres. Pursuant to the authority granted by Wyo. Stat. Ann. § 18-5-201 et seq., (Lexis-Nexis 2003), Natrona County adopted a zoning regulation providing no sales of land within a “major land subdivision” could occur until a plan, approved by Natrona County, was filed. A “major land division” is defined as “a division of land into three (3) or more lots or parcels 35 acres through 80 acres in size each, when the three or more divisions occur in a five-year period, and parts not immediately conveyed to others may remain in them present use for some time.” Wyo. Stat. Ann. § 18 — 5—303(b) (LexisNexis 2003) grants counties the authority to regulate the subdivision of land, and provides, “[t]his article shall not apply to the sale ... of land where the parcels involved are thirty-five (35) acres or larger.” Natrona County’s regulation also applies to “the division of land into three (3) or more lots smaller than 35 acres when not otherwise covered by the Wyoming Subdivision Act. W.S. § 18-5-101, et seq.” The regulation also requires that the owner of record of the property sign any application for a major land division.

[¶ 11] Pedro/Aspen began selling forty-acre parcels of land within Natrona County without first obtaining major subdivision plan approval from Natrona County. Although it filed an application for approval of its plan “in the spirit of cooperation,” Pedro/Aspen ultimately asked the court to declare the zoning regulation invalid because it exceeded Natrona County’s statutory authority to regulate the subdivision of land granted by Wyo. Stat. Ann. § 18-5-301 et seq. (LexisNexis 2003). In order to demonstrate that it had the requisite standing to pursue the declaratory judgment action, Pedro/Aspen had to establish it had a “tangible interest” at stake in the controversy over the validity of Natrona County’s zoning regulation.

[¶ 12] Natrona County suggests two reasons why Pedro/Aspen lacks standing to challenge its zoning regulation. First, it claims that Pedro/Aspen is not the owner of record, only such owners may apply for a major land development permit, and therefore, since Pedro/Aspen cannot apply for a permit, it cannot challenge the validity of the regulation requiring the permit. Next, Na-trona County argues Pedro/Aspen’s equitable interest as a purchaser under a contract for deed is too speculative and does not qualify as a “tangible interest.”

[¶ 13] Natrona County’s claim that Pedro/Aspen did not have standing to challenge the regulation because it could not apply for a permit as an “owner of record” ignores the fact that without such a permit Pedro/Aspen could not exercise its rights to the property it had acquired under a contract for deed. Natrona County’s position is analogous to arguing that a statute authorizing only men to obtain a driver’s license could not be challenged by women because they have no right to a license. Natrona County’s regulation purported to prevent Pedro/Aspen from selling parcels of land that it acquired through a contract for deed. To conclude that a party who cannot comply with a regulation has no standing to challenge the legality of the regulation is nonsensical. If the claim is made that a regulation exceeds the county’s statutory authority, a party whose tangible interest is affected by that regulation has standing to challenge it.

[¶ 14] Therefore, the focus of the standing analysis should be upon Natrona County’s argument regarding the nature of Pedro/Aspen’s interest in the property and whether it constitutes a sufficient “tangible interest” to provide standing to challenge a zoning regulation purporting to apply to the property. Throughout its argument, Natro-na County hints that because Pedro/Aspen never produced the actual contract, perhaps that contract fails to create a sufficient interest to support standing. The evidence of Pedro/Aspen’s interest in this matter consisted of the following:

1. A recorded document entitled “Notice of Execution of Agreement” which recited Pedro/Aspen had “entered into an Agreement for Sale of Real Property” with the record title owner of the property in question.
2. Pedro/Aspen’s admission that it “purchased the property contained in the land division pursuant to a contract for deed.” An admission in response to a request for admission “conclusively establishes” the fact pursuant to W.R.C.P. 36(b). Orcutt v. Shober Investment, Inc., 2003 WY 60, 69 P.3d 386 (Wyo.2003).
3. Twenty-five individual contracts, entitled “Standard Agreement for Sale of Real Estate”, filed in response to Natrona County’s request for production of documents and represented to be “existing contracts in place.” Each contract was executed by Pedro/Aspen and various individual purchasers and provided a sales price of $19,995 for a forty-acre parcel within the lands covered by the recorded “Notice of Execution of Agreement.”
4. Verified Answer to Interrogatory No. 10 representing that Pedro/Aspen placed advertisements for sale of property in Wyoming in USA Today, the Wall Street Journal, and newspapers in seventeen states.
5. Various other documents demonstrating Pedro/Aspen’s efforts to sell the forty-acre parcels in question.
6. Evidence that Pedro/Aspen was involved in several similar real estate sales projects in Wyoming, including Verified Answer to Interrogatory No. 7, which identified one involving 6,000 acres in Carbon County and another involving 3,000 acres in Natrona County, and that all of the parcels in these projects were sold to individual purchasers with many having been issued deeds.
7. An affidavit in which a Natrona County planner stated he had “personal knowledge” that Pedro/Aspen was selling individual forty-acre parcels of the property in question and had been contacted by persons who had purchased or were considering purchasing such parcels.

[¶ 15] All of this uncontested evidence demonstrated Pedro/Aspen had sufficient interest in the property to allow it to sell individual parcels, presumably for a profit, and had, in fact, made twenty-five such sales. Those sales resulted in the division of the land in question into parcels of approximately forty acres in size. Natrona County’s regulation purported to prohibit the division of land into three or more parcels from thirty-five to eighty acres in size. Violation of that regulation subjected the responsible person to enforcement. Natrona County’s actions indicated it intended to enforce its regulations and to impose conditions upon Pedro/Aspen, which would have required the expenditure of substantial money before the subdivision would be allowed. Irrespective of the absence from the record of the actual contract for deed between Pedro/Aspen and Robinett, the owner of record, we have no difficulty concluding the evidence demonstrated it created a sufficiently tangible interest to support standing.

[¶ 16] Natrona County also argues that even if the contract for deed created an equitable interest in the purchaser, that interest is too speculative and insufficient to support standing. While we have found no cases directly on point, and Natrona County cited none, we note that in Ford v. Board of County Commissioners of Converse County, 924 P.2d 91 (Wyo.1996), an equitable owner, presumably a buyer under a contract for deed, successfully challenged a Converse County zoning regulation.

[¶ 17] As we stated in Mayflower Restaurant Co. v. Griego, 741 P.2d 1106, 1113 (Wyo.1987), “When property is sold under a valid contract and an escrow created, the purchaser under the contract is the equitable owner and assumes all the risk, including liability of ownership, while the seller holds legal title in trust for the purchaser as security for the performance of the contract.” See Withers v. Board of County Commissioners of the County of San Juan, 96 N.M. 71, 628 P.2d 316 (N.M.App.1981); and Cox v. Fowler, 169 Okla. 355, 37 P.2d 291 (1934). We have held the vendor under a typical contract for deed has parted with title, possession, and control of the property. Dubray v. Howshar, 884 P.2d 23, 26 (Wyo.1994).

[¶ 18] The uncontested evidence proved Pedro/Aspen had a sufficient interest in the property to allow it to market, sell, and presumably realize profits from the forty-acre parcels in question. Unable to provide authority for its proposition that only the legal title holder would have standing to challenge the rule, Natrona County attempts to rely upon In re Estate of Ventling, 771 P.2d 388, 390 (Wyo.1989), which held that a judgment lien did not attach to the equitable interest of a buyer under a contract for deed. However, the rationale of that case was based upon statutory construction and did not suggest a buyer under a contract for deed would not have standing to challenge a zoning regulation restricting the use of the land in question. Likewise, neither did other cases upon which Natrona County relied. Tri-State Nat’l Bank v. Saffren, 726 P.2d 1081 (Wyo.1986) (which dealt with the equitable interest of a vendor, not a vendee, where the deed had actually been delivered); In re Various Water Rights in Lake DeSmet Reservoir v. Texaco, Inc., 623 P.2d 764 (Wyo.1981) (in which a mortgagee was found not to have standing to appeal an administrative decision regarding water rights related to the mortgaged property).

[¶ 19] Pedro/Aspen also meets the four part test required to pursue a declaratory judgment action as set forth in Pacificorp, 872 P.2d at 1168. As mentioned above, we generally do not relax the standing requirement in the context of an action under the Uniform Declaratory Judgments Act. Id.

[¶ 20] Having concluded Pedro/Aspen provided sufficient evidence of its interest in a contract for sale of the property allowing it to resell forty-acre parcels, and the direct impact of the zoning regulation upon that interest, we hold the first element (existing and genuine, not theoretical, rights or interest) of the four part test set out in Pacificorp was met. The uncontested evidence demonstrated sales and division of the property purportedly prohibited by the zoning regulation were occurring, and, in fact, those sales were the basis for Natrona County’s claim of harm. Neither did any question exist that Natrona County intended to enforce its regulation. Pedro/Aspen’s interest was not theoretical.

[¶ 21] With regard to the second element (judgment of the court may effectively operate), Natrona County was actively enforcing its regulations and requiring county approval before any land could be subdivided into parcels greater than 35 acres. Pedro/Aspen sought a declaratory judgment that “Chapter IX of the Zoning Resolution of Natrona County is ultra vires, unlawful and invalid in that it is in direct contravention of §§ 18-5-201 through 18-5-207 and § 18-5-303(a)(v) of the Wyoming Statutes.” If the regulation were found to be unlawful, it would be unenforceable against anyone. Pedro/Aspen’s claim clearly met the second element of the test.

[¶ 22] The third element (judicial determination will have the force and effect of a final judgment in law or in equity) is likewise met in this case. A judgment declaring the regulation invalid would prevent its enforcement and allow Pedro/Aspen to continue to sell property and thus, “have the force and effect of a final judgment in law or decree in equity upon the rights, status or other legal relationships of one or more of the real parties in interest.” Pacificorp, 872 P.2d at 1168.

[¶ 23] In an apparent effort to show the fourth element (proceedings are genuinely adversary) was not met, Natrona County suggests the matter was not truly adversary because Pedro/Aspen submitted an application in the “spirit of cooperation.” However, that application was withdrawn and no doubt exists that the parties’ positions were adverse. Pedro/Aspen’s attempt to comply with the regulation does not prevent it from contending, in the alternative, that the regulation is invalid. No doubt existed that Na-trona County’s position that subdivision of parcels larger than 36 acres required approval was diametrically opposed to Pedro/Aspen’s position that Natrona County had no authority to require such approval. The dispute was “genuinely adverse” and the fourth element of the test was met.

2. Validity of Natrona County’s “Major Land Subdivision” Regulation

[¶ 24]Having concluded Pedro/Aspen had standing to challenge the regulations, we now address the merits of its claim regarding the authority of Natrona County to regulate the subdivision of land into parcels greater than thirty-five acres. To properly analyze the question of Natrona County’s statutory authority to adopt the major land subdivision regulation, the difference between zoning and subdivision must be understood. The legislature granted Natrona County the authority to regulate the use of land pursuant to § 18-5-201 which provides, “[t]o promote the public health, safety, morals and general welfare of the county, each board of county commissioners may regulate and restrict the location and use of buildings and structures and the use, condition of use or occupancy of lands for residence, recreation, agriculture, industry, commerce, public use and other purposes in the unincorporated area of the county.” We have held the authority granted by this provision is broad. Board of County Commissioners of Teton County v. Crow, 2003 WY 40, 65 P.3d 720 (Wyo.2003). However, by express statutory language, this broad authority is limited to regulation of the use of land, not the division of it into parcels. For example, the same planning and zoning statute specifies, in Wyo. Stat. Ann. § 18-5-203 (LexisNexis 2003), that it is unlawful to “locate, erect, construct, reconstruct, enlarge, change, maintain or use any building or use any land within any area included in a zoning resolution without first obtaining a zoning certificate from the board of county commissioners and no zoning certificate shall be issued unless the plans for the proposed building, structure or use fully comply with the zoning regulations then in effect.” The clear import of this provision is, again, the regulation of the use of land, not its division into parcels. We have defined zoning as “the division of land into zones and within these zones the regulation of both the nature of land usage and the physical dimensions of these uses including height setbacks and minimum area.” Cheyenne Airport Bd. v. Rogers, 707 P.2d 717, 726 (Wyo.1985). Natrona County has full authority to regulate the use of Pedro/Aspen’s land pursuant to its zoning regulation.

[¶25] However, the only authority granted to Natrona County by the legislature to regulate the division of land into parcels is § 18-5-301 et seq., the Real Estate Subdivisions Act. (e.g. “No person shall subdivide land ... without first obtaining a subdivision permit from the board of the county in which the land is located.”) Wyo. Stat. Ann. § 18-5-304 (LexisNexis 2003). Counties have only those powers granted expressly by statute or necessarily implied in order to execute express powers. Schoeller v. Bd. of County Commissioners of the County of Park, 568 P.2d 869 (Wyo.1977). The specific terms of § 18-5-301 limit the authority it grants to counties. Section 18-5-303(b) states, “[t]his article shall not apply to the sale or other disposition of land where the parcels involved are thirty-five (35) acres or larger.” Applying the plain meaning of the statute leads to the unavoidable conclusion that the legislature did not give counties the authority to require county approval for subdivision of land into parcels greater than thirty-five acres.

[¶ 26] Natrona County attempted to avoid this interpretation by pointing to Wyo. Stat. Ann. § 18-5-315 (LexisNexis 2003) and suggesting that provision gave it authority to impose more stringent regulations, thus authorizing county regulation of subdivision of land into parcels larger than thirty-five acres. That section provides, “[i]f any board has or enacts resolutions or regulations which impose requirements on subdi-viders or subdivisions which are more restrictive than the provisions of this article, the authority to enact such local resolutions or regulations being hereby granted, the local provisions are not superseded by the provisions of this article.” Id.

[¶ 27] Two problems exist with Natrona County’s reasoning. First, reading the language of § 18-5-315 carefully, the legislature clearly authorized counties to impose more restrictive standards on subdivisions, but did not authorize them to change the explicit exemption of subdivisions in which the parcels are greater than thirty-five acres. Second, if Natrona County’s interpretations were correct, the definition of “subdivision”, as well as the list of ten exemptions, would become meaningless, a result not likely intended by the legislature. In interpreting statutes, we give effect to every word, clause and sentence, and construe them in pari materia. Rawlinson v. Greer, 2003 WY 28, 64 P.3d 120 (Wyo.2003). We avoid construing a statute so as to render a portion of it meaningless. Wyodak Resources Development Corp. v. Department of Revenue, 2002 WY 181, 60 P.3d 129 (Wyo.2002). Reading § 18-5-315 as Natrona County does renders the statutory exemptions meaningless.

[¶ 28] Two Attorney General opinions, spanning twenty years, agreed with the conclusion that counties have no authority to require approval of subdivisions involving parcels greater than thirty-five acres. 79 Op. Atty. Gen 35 (Dec. 18, 1979); 99 Op. Atty. Gen. 2 (June 22, 1999). Likewise, courts in other jurisdictions, when presented with similar issues, have reached the same conclusion. In State ex rel. Swart v. Casne, 172 Mont. 302, 564 P.2d 983 (1977), the court rejected a state agency’s effort to regulate a division of property which was exempt from that state’s subdivision act, stating,

They engraft additional and contradictory requirements on the statute in the guise of defining and implementing the evasion of statutory requirements. They frustrate the purpose of the “occasional sale” exemption of the Act. As such, the DCA regulations are void on their face.

Id. at 986.

[¶ 29] The court went on to address the agency’s argument that it had been given statutory authority to prescribe standards.

Where, as here, the Act provides for exemption of occasional sales from the subdivision requirements, DCA cannot prescribe subdivision regulations eliminating the exemption .... An administrative agency is not a “super legislature” empowered to change statutory law under the cloak of an assumed delegated power.

Id.See also Arundel v. Swain, 374 A.2d 317 (Me.1977) (town was without power to change statutory definitions); Stoker v. Irvington, 71 N.J.Super. 370, 177 A.2d 61 (1961) (town was without power to add to or delete from statutory exceptions); and Manalapan Builders Alliance, Inc. v. Township Committee of the Township of Manalapan, 256 N.J.Super. 295, 606 A.2d 1132 (1992) (adoption of township zoning ordinance which deviated from statutory definitions was ultra vires and beyond power of township).

[¶ 30] Natrona County argued passionately about the evils of subdivisions such as Pedro/Aspen’s, including the potential for inadequate roads, utilities, and other infrastructure. It also cited incompatibility of these subdivisions with the Natrona County land use plan. We have no doubt the problems raised by Natrona County do, in fact, exist. However, the fact that Natrona County has no authority to prevent the subdivision of land beyond that granted by the statute does not render it defenseless against the problems it perceives with subdivisions having parcels larger than 35-acres. Natrona County retains full authority through its zoning powers to regulate the use of those lands by establishing approved uses in certain zones and standards for activities such as building, road construction and sewage disposal. Although we appreciate Natrona County’s concern that dealing with many individual owners is more difficult than handling these issues before the land is subdivided, the manner in which these concerns can be addressed by local governments is the business of the legislature. It is not the job of the courts to grant such powers specifically withheld by the legislative branch.

CONCLUSION

[¶ 31] We hold Pedro/Aspen had standing to challenge the validity of Chapter IX of Natrona County’s Zoning Resolution and that resolution exceeds Natrona County’s statutory authority to regulate the subdivision of land. The judgment of the district court is reversed and the matter is remanded for proceedings consistent with this opinion.

      . During oral argument, counsel for Pedro/Aspen stated that the application had been withdrawn.

      . While the record does not contain the actual pleadings referenced in the stipulation, the recitations in the stipulation indicate Pedro/Aspen filed and withdrew a motion to dismiss counts two through ten (those added by the amended complaint) and a motion for certification pursuant to Rule 54(b), and that Natrona County had filed and withdrew a motion for summary judgment.


author: GOLDEN, Justice. LEHMAN, Justice,

text:
    2004 WY 86
    WERCS, a Wyoming corporation, dba Wyoming Financial Group, Appellant (Defendant), v. Michael R. CAPSHAW, Appellee (Plaintiff).
    No. 02-185.
    Supreme Court of Wyoming.
    July 20, 2004.

      Representing Appellant: Timothy M. Stubson of Brown, Drew & Massey, LLP, Casper, Wyoming; and J. Michael Tabor, West Palm Beach, Florida. Argument by Mr. Tabor.
    Representing Appellee: Mark W. Gifford, Casper, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   GOLDEN, Justice.

[¶ 1] In this wrongful employment termination case, the jury, having received appropriate instructions of applicable Wyoming employment law and a special verdict form, returned a special verdict finding that the employer had breached an oral employment contract which required cause for termination, and awarded the employee $223,656.00 as damages. On appeal, the employer assigns error in the trial court’s pretrial summary judgment determination that the employee could advance at trial the doctrine of substantial performance to counter the employer’s affirmative defense that the statute of frauds required that a contract incapable of being performed within one year must be in writing and signed by the party to be bound. We affirm.

ISSUES

[¶2] The employer states the issues on appeal to be:

1. Whether the district court erred in applying the substantial performance doctrine to an employment agreement governed by the presumption of at-will employment.
2. Whether in light of the equitable principles underlying the doctrine of substantial performance, the district court erred by applying it in a case where [employee] was paid for the performance he provided.

The employee counters with this statement of the issues:

1. Can [employer] raise an issue on appeal that it waived by virtue of its failure to move for judgment as a matter of law in the trial court?
2. Did the statute of frauds apply to a contract of employment of indefinite duration?
3. Does the statute of frauds apply to a contract of employment that could be performed within one year, i.e., if [employee] were terminated for cause?
4. Even if his contract were for a specific duration, does [employee’s] part performance take the contract out of the statute of frauds?
5. Do the equities favor enforcement of [employee’s] contract of employment?

FACTS

[¶ 3] The employer, Wyoming Employee Resource Capital and Service (WERCS), is a Wyoming corporation, doing business as Wyoming Financial Group, with its home office in Casper, Wyoming. WERCS serves as a holding company for a number of subsidiaries including Wyoming Financial Properties (WFP). In the spring of 1995, WERCS was acquiring ownership of a number of properties, performing remodels on properties, and negotiating to manage other buildings. Because of this business activity and the growth of WFP, its properties subsidiary, WERCS wanted to hire a manager for WFP. Robert Moberly, WERCS’ chief operating officer, talked to Michael R. Capshaw about taking the position as manager of WFP. At the time of their discussions, Capshaw owned a small residential construction company. The two men discussed the matter several times before Capshaw agreed to take the position. At the final meeting between the two men in Moberly’s office, Moberly gave Capshaw a sheet of paper on which Moberly had written separate columns outlining salary, bonus, and contributions to an employee stock option plan for the first five years of employment as manager of WFP. Other figures which Moberly had written on the sheet of paper projected compensation if certain contingencies were met, such as WFP’s acquisition of additional property management contracts. The two men discussed Moberly’s notations on the sheet of paper, and Cap-shaw accepted Moberly’s offer on behalf of WERCS to become WFP’s manager. Although Capshaw signed the sheet of paper, neither Moberly nor any other WERCS representative did. WERCS and Capshaw agree that theirs was an oral contract of employment. During Capshaw’s employment with WERCS from March 1995 to June 1998, his duties as manager, and later as president, of WFP included handling leasing arrangements and tending the needs of tenants in the office buildings owned by WFP, overseeing extensive remodeling in WFP’s buildings, remodeling homes owned by WERCS’ executives and their relatives, and undertaking construction of several town-homes that would eventually be offered for sale to the public.

[¶ 4] In June 1998, WERCS fired Cap-shaw because of alleged deficiencies in his work performance including his discretionary spending on tree trimming, his work on two remodeling projects, his voiced opposition to WERCS’ purchase of a check-cashing business which was owned by Moberly’s wife and sister-in-law, and his alleged plot to set up a WERCS’ executive on an unauthorized-practice-of-law claim.

Procedural Background

[¶ 5] Following his firing, Capshaw sued WERCS for wrongful termination of employment without good cause. In his complaint, he sought relief under five claims: breach of contract, promissory estoppel, breach of the implied covenant of good faith and fair dealing, retaliatory firing in violation of public policy, and wasting corporate assets. With respect to the breach of employment contract claim in his complaint, Capshaw averred, among other things, that WERCS offered and he accepted employment for a minimum of five years with compensation as embodied on the sheet of paper on which Moberly had written such compensation information and which Moberly had given to him at their meeting in March 1995 at Moberly’s office. Capshaw also averred, among other things, that an implicit term of the job offer was that WERCS would not terminate his employment without good cause during the initial five years and for so long thereafter as Cap-shaw satisfactorily preformed his job duties. Finally, Capshaw averred, among other things, that WERCS wrongfully fired him without warning or cause, giving as reasons several alleged deficiencies in his work performance.

[¶ 6] WERCS filed an answer and asserted a counterclaim. In that part of its answer which addressed Capshaw’s breach of employment contract claim, WERCS claimed, among other things, that Capshaw was an employee at-will, and WERCS denied that his employment could not be terminated without good cause during the initial five years and as long as he satisfactorily performed his job duties. WERCS admitted that it had fired Capshaw but denied it had wrongfully fired him. WERCS pleaded a number of affirmative defenses, one of those being that Capshaw’s claims were barred by the statute of frauds.

[¶7] The parties engaged in discovery, after which WERCS moved for summary judgment on Capshaw’s five claims. With respect to the breach of employment contract claim, WERCS argued that Capshaw had alleged he was hired for a specific term of five years, i.e., an employment contract of definite duration; but WERCS maintained that Capshaw’s employment was for an indefinite duration and he was, therefore, an at-will employee whom WERCS could fire with or without a reason. Arguing in the alternative, WERCS contended that, even assuming Capshaw’s employment was of five years definite duration, and not of indefinite duration as WERCS’ asserted, a provision of Wyoming’s statute of frauds, Wyo. Stat. Ann. § 1 — 23—105(a)(i), required a writing signed by the party to be bound, namely WERCS, or the contract would be deemed void. Because no such writing existed in this case, WERCS reasoned, Capshaw’s claim failed. Next, WERCS argued that the doctrine of substantial performance, as an exception to the application of the statute of frauds, was not recognized under Wyoming law in the case of a performance-of-services contract, such as an employment contract.

[¶ 8] In Capshaw’s response to WERCS’ argument on the breach of employment contract claim, Capshaw did not contend that the employment contract was one of definite duration; rather, referencing his affidavit attached to his memorandum in opposition to WERCS’ summary judgment motion, Cap-shaw stated that at their meeting in Moberly’s office in March 1995, Moberly gave him a sheet of paper which showed his guaranteed compensation and said that Capshaw was guaranteed that compensation for the first five years of his employment and that his compensation could only increase after the first five years. Capshaw also argued that WERCS’ statute of frauds affirmative defense failed because he substantially performed his employment duties for more than three years before WERCS wrongfully fired him. He also argued that whether substantial performance occurred was a question of fact for the jury to decide at trial.

[¶ 9] At the conclusion of the summary judgment hearing, the district court denied WERCS’ motion with respect to Capshaw’s breach of employment contract claim. Identifying the primary issue to be “whether there has been sufficient substantial performance to remove this from the statute of frauds as an implied or oral contract,” the district court rejected WERCS’ argument of the inapplicability of substantial performance, stated that the court could appropriately consider substantial performance, and concluded that “all of these matters involving substantial performance are either questions of fact or mixed questions of law or fact for a jury to resolve.... ”

[¶ 10] With respect to WERCS’ summary judgment motion on Capshaw’s other four claims, the district court denied it on the promissory estoppel claim, granted it on the breach of the implied covenant of good faith and fair dealing claim, granted it (only to later reinstate it) on the retaliatory discharge claim, and did not rule on the wasting corporate assets claim because Capshaw had withdrawn it.

Trial

[¶ 11] The parties tried the case to a jury on Capshaw’s claims of breach of employment contract, promissory estoppel, and retaliatory discharge in violation of public policy and on WERCS’ counterclaim that Capshaw had violated his duty of good faith and loyalty to WERCS. The district judge thoroughly instructed the jury on the applicable law. WERCS did not object to any of these jury instructions and, on appeal, does not assign any error about these jury instructions. After deliberating on the verdict, the jury returned its verdict on the special verdict form provided by the district court. WERCS did not object at trial to that special verdict form and, on appeal, does not assign any error about that special verdict form.

[¶ 12] On the special verdict form returned by the jury, under the heading “Breach of Contract Claim,” the jury answered “yes” to the single question posed: ‘"Was there a contract of employment between Michael Capshaw and [WERCS] that required good cause for discharge?” Following the instructions on that special verdict form, the jury proceeded to Question 5 on the special verdict form, thus not answering the questions under either the “Promissory Estoppel” heading or the ‘Violation Of Public Policy” heading. At Question 5, the jury answered “No” to the question: “Did [WERCS] have good cause to discharge Cap-shaw?” Following the instructions on the special verdict form, the jury proceeded to Question 6 and answered that $223,656.00 was the amount of damages Capshaw suffered because of WERCS’ actions. Following the instructions on the special verdict form, the jury proceeded to Question 7, which concerned WERCS’ counterclaim, and answered that Capshaw did not violate his duty of good faith and loyalty to WERCS. Again following the instructions on the special verdict form, the jury proceeded to Question 9 and answered that Capshaw did not receive payments from WERCS to which he was not entitled.

[¶ 13] The district court entered its judgment on the special jury verdict. WERCS has timely appealed, raising the issues earlier identified.

DISCUSSION

Standard Of Review

[¶ 14] WERCS asserts that its appeal addresses the district court’s summary judgment determination of law concerning the applicability of the statute of frauds generally and substantial performance specifically. Wilkinson v. State ex rel. Wyoming Workers’ Safety and Comp. Div., 991 P.2d 1228, 1233 n. 3 (Wyo.2000). A determination of law is, of course, subject to de novo review by this Court.

[¶ 15] Capshaw disagrees with the standard of review advanced by WERCS because Capshaw disagrees with WERCS’ view of the case in light of the special verdict returned by the jury. Because the jury found on the special verdict form that Capshaw had an employment contract that could be terminated only for good cause and that WERCS did not have good cause to terminate that contract, Capshaw asserts that this Court should apply a sufficiency-of-the-evidence standard of review. Daley v. Wenzel, 2001 WY 80, ¶ 24, 30 P.3d 547, ¶ 24 (Wyo.2001).

[¶ 16] That the district court and the parties submitted a special verdict under W.R.C.P. 49(a) to be answered by the jury is of paramount importance in our resolution of this appeal. Neither party, however, has addressed that rule and that importance. We must, however, because the rule establishes the standard of review which we must apply in this appeal. The subject of special verdicts is addressed in W.R.C.P. 49(a), which is similar to its federal rule counterpart. Under the pleadings and evidence in this case, several issues of fact emerged at trial, most notably whether the oral employment contract was at-will, was of indefinite duration, was of definite duration (five years), and whether there was substantial performance if the contract was of definite duration of more than one year. Special findings on each of these issues of fact could have properly been made had the special verdict form so provided. Our inspection of the special verdict form submitted by the district court and the parties to the jury reveals, however, that some of these issues of fact raised by the pleadings and by the evidence were omitted. The only issues of fact upon which the jury was to make special findings concerning Capshaw’s breach of employment contract claim and WERCS’ defenses to that claim were “[w]as there a contract of employment ... that required good cause for discharge?” and “[d]id [WERCS] have good cause to discharge ... Capshaw?” Omitted issues of fact were “was the oral employment contract at-will,” “was the oral employment contract of indefinite duration,” “was the oral employment contract of definite duration (five years),” and “if the oral employment contract was of definite duration (five years), was there substantial performance by Capshaw.” Under W.R.C.P. 49(a), if any issue of fact raised by the pleadings or by the evidence is omitted from the special verdict form, “each party waives the right to a trial by jury of the issue so omitted unless before the jury retires the party demands its submission to the jury.” Further, the trial court may make a finding as to an issue of fact omitted without such demand. W.R.C.P. 49(a). But, if the trial court fails to do so, the trial court “shall be deemed to have made a finding in accord with the judgment on the special verdict.” Id. Our research has not found any Wyoming cases involving the application of W.R.C.P. 49(a)’s provisions to a situation like the one before us in this appeal. Our research has found, however, several federal cases involving the application of F.R.C.P. 49(a)’s provisions to situations somewhat similar to those here. Because of the similarity between W.R.C.P. 49(a) and F.R.C.P. 49(a), we find these federal cases helpful. They are Ansin v. River Oaks Furniture, Inc., 105 F.3d 745 (1st Cir.1997); AG Systems, Inc. v. United Decorative Plastics Corp., 55 F.3d 970 (4th Cir.1995); Hiltgen v. Sumrall, 47 F.3d 695 (5th Cir.1995); and Hyde v. Land-of-Sky Regional Council, 572 F.2d 988 (4th Cir.1978).

[¶ 17] By the pleadings and by the evidence, WERCS maintained that the oral employment contract was either at-will or, alternatively, one incapable of being performed within one year — one of five years’ duration. As to the latter type of contract, WERCS asserted the affirmative defense of the statute of frauds, i.e., the contract must be in writing and signed by WERCS, the party to be bound. On appeal, the sole error raised by WERCS is the trial court’s ruling, when denying WERCS’ summary judgment, that allowed Capshaw to raise at trial the doctrine of substantial performance to counter WERCS’ statute of frauds affirmative defense. As we shall show in the discussion that follows, WERCS faces a serious problem created by WERCS’ failure to seek special findings on the special verdict form on the factual issues whether the employment contract was at-will; was of more than one year’s duration (conti-act of definite duration); and if it was one of more than one year’s duration, whether Capshaw substantially performed. As W.R.C.P. 49(a) and the federal cases referenced above reveal, serious consequences befall a party who omits from a special verdict form issues of fact crucial to that omitting party’s litigative success.

The Correct View of This Case

[¶ 18] Before trial, the district court denied WERCS’ motion for summary judgment on Capshaw’s breach of employment contract claim.- At the conclusion of the hearing on that motion, the district court stated that the statute of frauds, asserted as an affirmative defense by WERCS, and the doctrine of substantial performance, asserted as an exception to the statute of frauds by Capshaw, were at play in the case. Further, the district court concluded that “all of these matters involving substantial performance” presented questions of fact or mixed questions of law or fact for a jury to resolve.

[¶ 19] In the presentation of the case at trial, the parties presented evidence from which the jury had to decide what kind of employment contract this was and what were its terms. The only feature of the contract on which the parties agreed was that it was oral, not written. Capshaw maintains that evidence was received from which a jury could find a contract of indefinite duration, with specified, guaranteed income during the first five years, and at least $100,000 each year thereafter as long as he satisfactorily performed his job duties; he maintains these assurances gave rise to an implied covenant that WERCS would not fire him without good cause. On the other hand, WERCS maintains that evidence was received from which a jury could find an at-will contract for an indefinite term with no covenant that WERCS could fire Capshaw only for cause; and WERCS also maintains that Capshaw presented evidence and argument from which a jury could find a contract of definite duration, namely, a duration of five years. In defense of that type of contract, WERCS pressed the affirmative defense of the statute of frauds. And, in response to that affirmative defense, Capshaw pressed the substantial performance exception to the statute of frauds.

[¶20] It was in this posture that the parties submitted the case to the jury. That this is so is unquestionably confirmed by the pertinent instructions of law given by the district court to the jury after the evidence was closed and the parties had rested their case. As we know, a party is entitled to have the jury instructed upon its theory of the case if that theory is supported by competent evidence. Thunder Hawk v. Union Pacific R. Co., 891 P.2d 773, 783 (Wyo.1995). The jury instructions most pertinent to Capshaw’s breach of employment contract claim and WERCS’ defenses to that claim included Jury Instructions Nos. 11 through 24. Jury Instruction No. 11 stated the parties’ contentions. Jury Instruction No. 12 stated the “at-will” presumption under Wyoming law and Capshaw’s burden to prove the existence of a “for cause” employment contract. Jury Instruction No. 13 described the nature of an “at-will” employment. Jury Instruction No. 14 instructed that the parties may alter an “at-will” employment, an express contract may be either written or oral, and an implied for-cause contract may arise from the parties’ conduct and an employer’s course of dealing. Jury Instruction No. 15 instructed that offer, acceptance, and consideration were the elements of a binding contract; and that the parties’ mutual assent, by words or actions, was necessary for contract formation. Jury Instruction No. 15A defined consideration. Jury Instruction No. 16 identified the four elements of the breach of employment contract claim which Capshaw must prove. Jury Instruction No. 17 instructed that evidence of the terms of the employment contract may be found in the parties’ actions after entering into the contract and the parties’ performance under the contract. Jury Instruction No. 18 instructed on the statute of frauds and the substantial performance exception to it. Jury Instruction No. 19 explained the concept of substantial performance. Jury Instruction No. 20 explained WERCS’ contention about written “at-will” disclaimers signed by Capshaw in 1996 and 1997. Jury Instruction No. 21 instructed that if the jury decided that the parties’ employment contract was for a specified time, then WERCS could terminate Capshaw only “for cause;” and the instruction generally, and briefly, explained “for cause.” Jury Instruction No. 22 explained removal of a corporate officer by the corporation’s board of directors. Jury Instruction No. 23 explained an employer’s use of information about a terminated employee obtained after the employee’s termination. Jury Instruction No. 24 instructed on recoverable damages if the jury found breach of contract. In these jury instructions, then, the trial court presented the law applicable to the breach-of-employment-contraet issues actually raised by the evidence. Thunder Hawk, 891 P.2d at 783; Baier v. State, 891 P.2d 754, 756 (Wyo.1995). To reiterate, Capshaw maintained that evidence was received from which the jury could find an implied contract of indefinite duration, with specified guaranteed income during the first five years, and at least $100,000 each year thereafter so long as he satisfactorily performed his job duties, and assurances that WERCS would not fire him without good cause. On the other hand, WERCS maintained that evidence was received from which the jury could find either (1) an “at-will” contract for an indefinite term with no covenant that WERCS could fire Capshaw only for cause; or (2) a contract of definite, specified duration, namely, five years. If the jury had found this latter type of contract, then WERCS relied on the statute of frauds jury instruction and Cap-shaw relied on the substantial performance exception jury instruction.

[¶ 21] As we inspect the special verdict form submitted without objection to the jury along with the jury instructions set forth above, we see that the special verdict form did not ask the jury to find whether the employment contract was either (1) a contract of indefinite duration with an implied “for cause” requirement, as Capshaw maintained; (2) an “at-will” contract of indefinite duration without a “for cause” requirement, as WERCS maintained; (3) a contract of definite, specified five years’ duration, as WERCS alternatively maintained; or (4) if it was a contract of definite duration, then whether Capshaw substantially performed. Instead, the special verdict form asked only whether there existed an employment contract requiring good cause for discharge. And, as we have noted earlier, the jury answered in the affirmative. It is, then, at this point that we must apply W.R.C.P. 49(a)’s provisions and the understanding of those provisions which the federal cases give us. WERCS’ sole issue on appeal is that the trial court’s summary judgment ruling — which allowed Capshaw to raise at trial the substantial performance exception to WERCS’ affirmative defense of the statute of frauds— resulted in the special verdict and judgment entered against WERCS at trial. But we do not know that and we will never know that because WERCS did not seek the jury’s special written finding upon whether the contract was of definite duration and whether Capshaw substantially performed. By not submitting those issues of fact to the jury on the special verdict form and by not demanding their submission to the jury before it retired, WERCS waived its right to have those issues tried by the jury. W.R.C.P. 49(a); Hyde v. Land-of-Sky Regional Council, 572 F.2d at 991. The trial court is deemed to have made a finding on those issues in accord with the judgment on the special verdict. Id. As further explained in Ansin v. River Oaks Furniture, Inc., addressing the defendant’s failure to submit affirmative defense issues on the special verdict form:

Under Rule 49(a), if the district court does not make a finding on an issue not submitted to the jury, “it will be presumed on appeal that the lower court made whatever finding was necessary in order to support the judgment that was entered.” 9A Wright & Miller, Federal Practice and Procedure, § 2507, at 185-86 (1995); see also Kavanaugh v. Greenlee Tool Co., 944 F.2d 7, 11-12 (1st Cir.1991). As the district court entered a judgment for the plaintiffs, we presume that it found that defendants had not proven the claimed equitable defenses.

105 F.3d at 756.

[¶ 22] Applying this understanding of Rule 49(a)’s provisions to WERCS’ appeal, because the trial court did not make a finding on the issues of fact not submitted by WERCS to the jury — whether the employment contract was one of definite duration of more than one year and thus within the statute of frauds and whether Capshaw substantially performed — we presume on appeal that the trial court made whatever finding was necessary in order to support the judgment that was entered. As the trial court entered a judgment for Capshaw, we presume that the trial court found that WERCS had not proven the claimed defenses and affirmative defenses. Accord, AG Systems, Inc. v. United Decorative Plastics Corp., 55 F.3d at 974. The proper standard of review requires this Court to adopt a view of the case that makes the jury’s answers in the special verdict form consistent. Hiltgen v. Sumrall, 47 F.3d at 701. Based upon the evidence and the jury instructions, the jury could have found that a “for cause” employment contract existed, without ever finding that it was for a definite term of more than one year which would be within the statute of frauds, and without ever having to find whether Capshaw substantially performed. Thus, the trial court’s pre-trial summary judgment rulings of which WERCS’ complains actually played no part in the jury’s special verdict. We affirm the judgment entered on the jury’s special verdict in all respects.

LEHMAN, Justice,

concurring.

[¶ 23] I concur with the majority’s discussion of W.R.C.P. 49(a) and the consequences that befall a party who fails to include crucial factual issues on the special verdict form. I also agree that, because the special verdict form failed to specify on what grounds the jury found a for-cause contract, it is possible that the jury did not find a five-year contract or rely on substantial performance. I, therefore, do not dispute that WERCS faces the problems on appeal that the majority outlines. However, I believe that some may read the majority opinion as embracing the district court’s determination that substantial performance can be applied in employment cases. To any extent the opinion may be read that way, I do not agree.

[¶ 24] As noted by the majority, the district court specifically found that the substantial performance exception was at play in this case. ¶ 18. Throughout the opinion the majority references WERCS’ obligation to submit certain findings to the jury, one of which is if the contract was of definite duration whether Capshaw substantially performed. Specifically, in ¶ 21 the majority says: “By not submitting those issues of fact to the jury on the special verdict form and by not demanding their submission to the jury before it retires, WERCS waived its right to have those issues tried by the jury. W.R.C.P. 49(a).” It is these statements that cause me concern. Even though the opinion is correct to hold WERCS responsible for not including those specific findings on the verdict form under the circumstances of this case, I would clarify that we have never endorsed the proposition that substantial performance can be applied to save an employment contract from the statute of frauds.

[¶ 25] It is certainly true that “[w]hether or not [a party] substantially performed under the agreements is a question of fact.” Ferguson v. Reed, 822 P.2d 1287, 1290 (Wyo.1991). As such, in instances in which substantial performance can be used as an exception to the statute of frauds, such a finding is a proper question for the jury. However, there is some doubt that the substantial performance doctrine is applicable in the context of employment contracts. This is due to the fact that when a contract of employment states a definite duration, dismissal only for cause is presumed. Wilder v. Cody Country Chamber of Commerce, 868 P.2d 211, 217 (Wyo.1994). To be entitled to this presumption, however, a party must be able to overcome the two restrictions incorporated in the presumption, one of which is “performance under a contract of definite duration is within the statute of frauds, Wyo. Stat. § 1-23-105 (1988), making evidence of a writing necessary if the terms are not performed within one year.” Id., at 218.

[¶26] The doctrine of substantial performance is an equitable exception to the statute of frauds. Fowler v. Fowler, 933 P.2d 502, 504 (Wyo.1997). The purpose of the doctrine of substantial performance is to assure that a party who has performed under an oral agreement is not denied the benefit of that performance under the guise of the statute of frauds or where it is impractical to compensate the performing party for the value of his performance. Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429, 439 (Tex.App.2002); see also Davis v. Davis, 855 P.2d 342, 346 (Wyo.1993); Fischer v. First Chicago Capital Markets, Inc., 195 F.3d 279 (7th Cir.1999).

[¶ 27] Normally, in eases of substantial performance, the performance of the obligations imposed by the contract provides evidence of the existence of the parties’ intent to enter a contractual relationship. Such is not generally the case with employment contracts. See Dumas v. Auto Club Ins. Assoc., 437 Mich. 521, 473 N.W.2d 652, 660-661 (1991). When considering exceptions to the statute of frauds, it is important to be mindful of the purpose of the statute of frauds. The statute of frauds is designed to prevent the enforcement of alleged promises that never were made. Metz Beverage Co. v. Wyoming Beverages, Inc., 2002 WY 21, ¶ 18, 39 P.3d 1051, ¶ 18 (Wyo.2002). In general terms, the statute of frauds requires that contracts of a certain type be shown by trustworthy evidence to avoid the uncertainty of casual promises and parol testimony. See generally Fowler v. Fowler, 933 P.2d 502; Yates v. Ball, 132 Fla. 132, 181 So. 341, 344 (1937).

[¶28] Thus, when substantial performance applies, the parties’ performance serves as proof of the parties’ intent under the contract. The performance should be generally referable to the asserted contract and nothing else. Rowland v. Ewell, 174 So.2d 78, 80 (Fla.App.1965); Exxon Corp. v. Breezevale Ltd., 82 S.W.3d at 439; Spears v. Warr, 44 P.3d 742, 751 (Utah 2002). While part performance of an employment contract may certainly reference a term-of-years contract, it may just as easily also reference an at-will employment relationship. Performance in these instances does nothing to establish the terms of the employment agreement. “Performance will remove an alleged contract from operation of the statute of frauds only when it is unequivocally referable to that contract.” Throndson v. Comm’r of Internal Rev., 457 F.2d 1022, 1026 (9th Cir.1972).

[¶ 29] The Supreme Court of Minnesota has stated: “[I]t is generally held that the uncompleted part performance of an oral contract for employment, not to be performed within 1 year, does not take the contract out of the statute of frauds.” Roaderick v. Lull Engineering Co., Inc., 296 Minn. 385, 208 N.W.2d 761, 763 (1973); see also Rowland v. Ewell, 174 So.2d 78, 80 (Fla.App.1965). If it were otherwise, every employment contract would be affected and at-will employment would be turned on its head. Allowing performance in the form of employment, to act as a bar to the statute of frauds would render the relevant provision of the statute of frauds meaningless. Any contract where the employee had begun work and received a paycheck would be protected from the application of that statute. Payne v. Mill Race Inn, 152 Ill.App.3d 269, 105 Ill.Dec. 324, 504 N.E.2d 193, 199-200 (1987) (explaining the holding in Mapes v. Kalva Corp., 68 Ill.App.3d 362, 24 Ill.Dec. 944, 386 N.E.2d 148 (1979)). Thus, it appears the doctrine of substantial performance cannot be used as an exception to the statute of frauds in the context of employment contracts.

[¶ 30] As such, I do not embrace the district court’s summary judgment ruling. However, because we do not know on what grounds the jury found, because WERCS did not seek the jury’s special written finding on whether the contract was of definite duration and whether Capshaw substantially performed, I concur.

      . The jury's finding that there was a contract of employment that required good cause for discharge was also a finding that there was no at-will oral employment contract; however, including the at-will employment question would not be superfluous if it made certain the jury consistently followed all instructions.