dissenting.
In dissenting to the present decision, I object to a very serious procedural appellate review misdirection now utilized. This error is found in the substantive factual decision the majority now makes on a non-litigated issue not previously considered by the trial court, counsel or presented by appellate briefing. In result, the majority makes a first time considered factual determination in the appellate decision. We eliminate participation of counsel in the decisional process and combine the trial court nisi prius fact finding with appellate review to approve summary judgment on a concept completely not argued and factually undeveloped by anyone.
This case, previously non-litigated, is now decided on the question of the actual or ostensible authority of the negotiating comptroller to make a binding laundry service contract while acting and negotiating within his duties as the chief financial officer of the hospital.
To understand the structure of this appeal, we must recognize that the trial court applied the statute of frauds to grant summary judgment disposition as a matter of law, Cordova v. Gosar, 719 P.2d 625, 636 (Wyo.1986) (stage five), for all elements of the claim except fraud. In adversely determining the fraud allegation, the trial court found there were insufficient grounds in pleading or evidence to sustain the claim against a summary judgment disposition. Id. at 635-36 (stages one and four). The trial court was neither presented with a contested claim nor thereafter made a finding that Mike Ockinga, “Chief Financial Officer of Defendant,” lacked authority to negotiate or make the deal which is the subject matter of this litigation. The majority now extracts from the evidence a factual conclusion which was not developed by assertion of affirmative defense or briefing argument. This result is achieved without citation of authority demonstrating why Ockinga, as the comptroller and chief financial officer of the hospital, would not have authority to negotiate a relatively modest laundry contract.
Within the broad sweep of summary judgment application, the majority has consequently shifted its review from considering the matter of law resolution to now addressing a factual concern by decision that there is no conflict in the evidence. Compare Cordova summary judgment (stage five) with the Cordova controlling legal principle ratio decidendi that no factual issue exists (stage six). The difference *255in application of principles of appellate review is divided by a gap figuratively as wide as the Grand Canyon. If the statute of frauds applies, issues of authority are not involved. Any decision where the title and character of the officer of negotiation is similar to what is found here overtly presents actual and apparent authority concepts of factual conflict. Affirming the fact finding by the trial court even with a grant of summary judgment might be one thing, a nisi prius fact finding function by this court is quite another.
Considering we are deciding an issue that was never litigated, I am forced to conclude on this record that the majority is entirely wrong in its decision to justify the summary judgment that was granted by the trial court based on statute of frauds. Since ostensible authority has never been in question by pleading, argument, evidence or briefing, we now embark on this fact finding exhibition with a very cloudy record.
In initial complaint, Lavoie claimed nego-tiatory sessions with “Mike Ockinga, Comptroller for and agent of defendant LVRMC, in Ockinga’s business office in the LVRMC to discuss a relationship which would involve the plaintiffs providing laundry services to defendant Safecare.” La-voie also alleged negotiations during an extended course of meetings, including the exchange of correspondence, and then stated:
Mr. Ockinga expressed satisfaction with plaintiffs’ proposal, location, and their price for laundry services, which amounted to a $10,000.00 savings to the defendant per year. Mr. Ockinga accepted plaintiffs’ offer and at that time the parties verbally and mutually agreed to do business together according to the terms discussed. Mr. Ockinga encouraged Mr. Lavoie to obtain the remaining financing and complete the remodeling and refitting required by defendant.
Further, Lavoie contended:
17. On July 29, 1988, plaintiffs had met or surpassed all the conditions mandated by defendant and notified defendant thereof. * * *
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21. On June 17, 1988, plaintiffs demonstrated that all conditions imposed by the defendant had been or could be met or surpassed by August 15, 1988, the date stipulated by defendant. During the June 17th meeting between Mr. La-voie and Mr. Ockinga, the parties agreed on all terms and conditions of a contract.
22. On that occasion defendant promised to purchase its health care institution linen and laundry services at a mutually agreed upon price per pouiid exclusively from plaintiffs commencing on August 15, 1988, for a three (3) year period until August 14, 1991. In exchange plaintiffs agreed to a certain schedule of delivery, and pick-up, certain policies and procedures in processing defendant’s linen and laundry, a particular price per pound for processing defendant’s linen and laundry, remodeling and refitting Daisy Cleaners to process the volume of linen and laundry generated by defendant, meeting the requirements and achieving certification from the Wyoming Department of Health and Social Services and to service all defendant’s laundry and dry cleaning needs during the stipulated period.
In answer, Safecare Health Service stated in part:
Defendants admit that certain meetings between Mike Ockinga and Plaintiffs occurred wherein Plaintiffs and Mr. Ockin-ga discussed a potential business relationship in which Plaintiffs’ cleaning establishment might be utilized to process hospital laundry. Defendants, however, deny all other allegations contained in paragraph 4 of Plaintiffs’ Complaint.
Generally, Safecare Health Service answered by denial of separate paragraphs which in many cases were obviously true or, if not true, could not have been known to be untrue by them. Of importance, however, are the affirmative defenses which were separately stated as the following:
*256 First Affirmative Defense
As a further and separate defense, Defendants state that Plaintiffs’ claims and causes of action brought against them fail to state claims for which relief can be granted.
Second Affirmative Defense
As a further and separate defense, Defendants state that Plaintiffs failed to comply with the required prerequisites which were mandated before any contract could be negotiated.
Third Affirmative Defense
As a further and separate defense, Defendants allege that there has been no consideration given and/or that there has been 'a failure of consideration which bars Plaintiffs’ contract claims.
Fourth Affirmative Defense
As a further and separate defense, Defendants allege that Plaintiffs’ claims are barred by the statute of frauds.
Fifth Affirmative Defense
As a further and separate defense, Defendants allege that Plaintiffs’ claims are barred by the applicable statute of limitations.
A scheduling order (order for pretrial) was entered by the trial court on November 15, 1989, which required the following five identified items:
1. Each element of each cause of action, and defense, and a reference to the witnesses, admissions and documents and exhibits to prove the element.
2. The contested issues of law, with a brief citation of authority for counsels’ position.
3. The facts established by pleadings, admissions and stipulations.
4. The contested issues of fact.
5. Each witness, with a succinctly detailed summary of the testimony of each.
In accord, Safecare Health Service’s designation of expert witnesses included:
Mike Ockinga, Lander Valley Medical Center, Lander, WY, in addition to his fact testimony, may testify regarding the proper financial management and contracting policies and procedures of hospitals and other health care institutions; all matters that may be raised in his deposition.
No witness was listed to testify about ostensible or actual authority.
Safecare Health Service filed extended interrogatories which, in addition to the normal introduction and definitions, included in part:
7. Identify all persons present at the meeting between you and Mike Ockinga held on May 2, 1988, and state the exact words spoken by each person at such meeting, if possible. If it is not possible to state the exact words spoken, please state as specifically as possible the substance of the words spoken by each person at the meeting.
8. Identify all persons present at the meeting between you and Mike Ockinga held on May 9, 1988, and state the exact words spoken by each person at such meeting, if possible. [I]f it is not possible to state the exact words spoken, please state as specifically as possible the substance of the words spoken by each person at the meeting.
9. Identify all persons present at the meeting between you and Mike Ockinga held on May 24, 1988, and state the exact words spoken by each person at such meeting, if possible. If it is not possible to state the exact words spoken, please state as specifically as possible the substance of the words spoken by each person at the meeting.
10. Identify all persons present at the meeting between you and Mike Ockinga held on June 17, 1988, and state the exact words spoken by each person at such meeting, if possible. If it is not possible to state the exact words spoken, please state as specifically as possible the substance of the words spoken by each person at the meeting.
11. Identify all persons present at the meeting between you and Mike Ockinga held on July 29, 1988, and state the exact words spoken by each person at such *257meeting, if possible. If it is not possible to state the exact words spoken, please state as specifically as possible the substance of the words spoken by each person at the meeting.
12. Identify all persons participating in, or overhearing, the phone conversation between you and Mike Ockinga held on June 16, 1988, and state the exact words spoken by each person in that conversation, if possible. If it is not possible to state the exact words spoken, please state as specifically as possible the substance of the words spoken by each person at the meeting.
13. Identify all persons present at the meeting between you and Mike Ockinga held on July 8, 1988 involving Don Pearson, Pat Moore and Mr. Lavoie, and state the exact words spoken by each person at such meeting, if possible. If it is not possible to state the exact words spoken, please state as specifically as possible the substance of the words spoken by each person at the meeting.
The interrogatories totalled ten pages plus the signature and certification as the eleventh page and addressed in no regard questions of authority of Ockinga to negotiate and commit. Lavoie’s first set of interrogatories to Safecare Health Service of eight pages similarly did not include any questions relating to Ockinga’s authority as comptroller and chief financial officer.
The litigation never reached the stage where pretrial memoranda in response to the scheduling order and order for pretrial were answered since the proceeding found an earlier end. The trial court sustained Defendant’s Motion to Dismiss the Plaintiffs’ Third Claim for Relief and for Summary Judgment on All Other Claims on the “grounds that there are no genuine issues of material fact and Defendant is therefore entitled to judgment as a matter of law.” That final order came following exhaustive briefing by Safecare Health Service which had first addressed the issue of duty of good faith to be enforceable under Wyoming law as a separate claim and then that “the breach of contract claim is barred by the statute of frauds.”
Safecare Health Service’s posture was summarized in its stated conclusion:
Lander Valley is entitled to a dismissal of the third claim for relief based on the covenant of good faith and fair dealing because that covenant cannot form an independent basis for relief. Lander Valley is entitled to judgment as a matter of law on the breach of contract claim because any oral contract is rendered void by the Wyoming statute of frauds. The Lavoies’ claim for promissory estoppel is subject to summary judgment on behalf of Lander Valley under the Turner case because Mr. Lavoie expected a written contract to be executed. Under these circumstances, the statute of frauds cannot be overcome by the doctrine of promissory estoppel. Finally, Lander Valley is entitled to summary judgment on the fraud claim for two reasons. First, Mr. Lavoie expected a written contract and is therefore precluded from claiming reasonable reliance on any oral understandings. Second, despite repeated questioning, Mr. Lavoie was unable to offer any clear and convincing evidence that showed that Mr. Ockinga had specific intent to defraud during the critical meeting of June 17, 1988.
In its decision, the trial court initiated its factual review:
On April 29, 1985, Plaintiff Philip H. Lavoie made an initial sales call on Mike Ockinga, Chief Financial Officer of Defendant. Ockinga expressed interest in Plaintiffs’ business since it was more local than a Casper firm providing laundry services to Defendant. Ockinga told La-voie that the existing contract would expire in August, 1988 and he asked Lavoie to submit a written proposal to Dave Brown, Administrator of Defendant hospital and Hugh Simco, Administrator of Defendant’s sister facility, Pine Ridge Hospital.
After detailing specifically the various meetings conducted between Ockinga and Lavoie, the trial court held that the statute of frauds, Wyo.Stat. § 1-23-105, precluded enforcement of any oral agreements and then stated:
*258The supposed “contract” which Plaintiffs claim was entered into between them and Defendant is in violation of the Wyoming Statute of Frauds and is therefore void.
* * * Defendant’s Motion for Summary Judgment in this matter should be granted.
Although the subject of actual or ostensible authority was obviously never factually developed by either litigant in interrogatory or deposition examination, the only place where something appears which is the basis of the majority’s decision, occurred during the deposition examination of Oekinga, only part of which is found in the record:
Q. Do you recall telling Mr. Lavoie that the hospitals and him would do business, during this meeting on June 17, 1988?
A. Would you repeat that question, please?
Q. Do you recall telling Mr. Lavoie at the end of the meeting on June 17, 1988, that the hospitals and him would do business, or words to that effect?
A. I deny saying that because I was never in a position — it is not within the purview of my authority to do that, and I’ve been in this business for long enough to know better than to do that.
(Discussion off the record.)
MR. MICHAEL: Had you completed the * * * answer to that or do you know?
MR. OCKINGA: I believe so.
Q. (MR. VINCENT) The long and short of it — or maybe it’s the short of it — is, you flatly deny ever saying to Mr. Lavoie that the hospitals would do business with his cleaners, or words to that effect?
A. I categorically deny saying that the hospitals definitely, without question, would do [page ended].
[The next page is not included in the record now presented for review by this court].
As previously stated, counsel has not been permitted to fully develop and argue the factually dispositive issue. In searching the record on this issue, we find the affidavit of Loretta Richey, which states in part:
Loretta Richey, of lawful age and being first duly sworn upon her oath, deposes and states as follows:
1. That during the summer of 1988 your Affiant was employed by defendant as the medical staff coordinator; that Affiant’s office was located in the administrative offices of the Lander Valley Regional Medical Center; that your Affi-ant’s office was located approximately 10 feet from the desk of Cyd Freese;
2. That Affiant, Cyd Freese, and Mike Oekinga had a conversation in the administrative offices of the Lander Valley Regional Medical Center pertaining to Phil Lavoie and the Daisy Laundry; that the conversation took place some time in late July or early August 1988 after Mr. Dave Brown had told Mr. La-voie that Mr. Lavoie would not be permitted to do the hospitals’ laundry; that Mr. Oekinga said to Cyd Freese, and your Affiant that there was a verbal agreement with Mr. Lavoie which provided generally that Mr. Lavoie was to complete the remodeling and, in return, be able to do both the hospital and Pine Ridge hospital’s laundry; that Mr. Ockin-ga said generally that he knew all along this would turn into a bad thing; that even though they didn’t have a written contract at that point, there had been a verbal agreement to give Mr. Lavoie the laundry contract when the remodeling was completed; that Mr. Oekinga said that he and Dave Brown knew of and, in fact, made this verbal agreement with Mr. Lavoie; that Cyd Freese, Mike Oc-kinga, and your Affiant knew that Mr. Lavoie had borrowed money to complete the remodeling required to do the hospital and Pine Ridge’s laundry[.]
Furthermore, Lavoie stated in his affidavit:
2. That I did not intend, nor did I say to any of defendant’s employees, that a contract had to be reduced to writing prior to the time or as a condition to me remodeling or purchasing equipment for the Daisy Laundry;
3. That Mr. Oekinga never, ever, told me that he did not have the authority to *259enter into a contract on behalf of the hospital; that I deny such to be the case and state that from the words, activities, and representations of Mr. Ockinga, he did have such authority[.]
Procedurally, it is inappropriate to affirm the summary judgment with this posture of the undeveloped trial court record. It is bad enough if two bases were submitted to the trial court and the decision was rendered on only one, but here it is even more unjustified where the trial court was not provided the basis to even consider the decision this majority now renders.
The authorities are extensive and generally consistent. I would find from a recent Texas case an approach that we should follow which, in itself, only addresses the more confined area where at least the issue was presented first to the trial court. Carlisle v. Philip Morris, Inc., 805 S.W.2d 498 (Tex.App.1991).
What, then, of a summary judgment order that expressly states the ground on which it is granted, when the underlying motion contained other independent grounds on which summary judgment was sought? We conclude that the ground specified in the judgment is the only one on which the summary judgment can be affirmed, for the following reasons. First, where a party has sought summary judgment on grounds A and B, a judgment expressly granting summary judgment on ground A, without mentioning ground B, can only be construed to mean that the trial court did not consider ground B. To construe it otherwise would be to permit and encourage an inference that is neither warranted by the record nor in keeping with the spirit of Rule 166a(c). Accordingly, we conclude that the trial court in the present case did not consider defendants’ “substantive-law” argument in deciding to grant the summary judgment. Having reached this conclusion, it appears obvious that a ground not considered by the trial court is functionally identical to one not presented to the trial court; we can conceive of no reason to treat them differently.
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* * * We hold that where, as here, a summary judgment order specifies the ground or grounds on which it is based, without expressly ruling on other independent grounds alleged in the motion, such other grounds may not, on appeal, form the basis for affirming the summary judgment. On the basis of that holding, we decline to consider defendants’ substantive-law arguments in this appeal.
Id. at 518-19 (emphasis in original and footnotes omitted). The cases are legion in which the appellate court asserts that it will not consider issues not previously presented for review by the trial court. R.O. Corp. v. John H. Bell Iron Mountain Ranch Co., 781 P.2d 910 (Wyo.1989); Demple v. Carroll, 21 Wyo. 447, 133 P. 137 (1913); Jones v. Kepford, 17 Wyo. 468, 100 P. 923 (1909).
At this juncture, little benefit to the bar and bench will be served by my exhaustive review of the subject of actual and ostensible authority since surely history will not reoccur where we make our decision upon an equivalently insufficient record as is done here. May it suffice that even if we now had a concluded trial with only the present evidence available, I would not vote to sustain a directed verdict by conclusion that actual or ostensible authority was not presented to be a question of fact. Kure v. Chevrolet Motor Div., 581 P.2d 603 (Wyo.1978); Waisner v. Hasbrouck, 34 Wyo. 61, 241 P. 703 (1925); Farmers’ State Bank of Riverton v. Haun, 30 Wyo. 322, 222 P. 45 (1924). It is a generally accepted rule that actual or ostensible authority is a question for factual resolution unless the facts do not provide any evidentiary conflict. Stone v. First Wyoming Bank N.A., Lusk, 625 F.2d 332 (10th Cir.1980).
If this dissent serves little benefit in substantively discussing the issue of actual or ostensible authority which was not considered by the litigants or the trial court during all times prior to appeal submission, there is even less benefit, since that is not *260a basis now considered in this majority, in now extensively discussing my disagreement with the trial court in regard to the statute of frauds preclusion by which summary judgment was granted. I do not, however, agree with the trial court decision as a matter of law under the developed facts that the partial performance escape from a statute of frauds preclusion might not be available for factual determination by a trial jury. In this litigative event, it is apparent that Safecare Health Service lead Lavoie far down the proverbial primrose path in sharp business dealing. There is clear indication from the affidavits in the record that the agent of negotiation, Ockin-ga, was following his orders in these activities for the covert, but real, purpose of developing negotiative leverage to reduce the price paid to a competitive source for the laundry services. From this perspective of summary judgment disposition, the question is whether Safecare Health Service went too far to escape the rainstorm of rejected business with the appellant by now being given the benefit in use from the umbrella of the statute of frauds.
Differing from the trial court, I would find in analysis, at least within summary judgment concepts, that this negotiated business deal went too far for Safecare Health Service to ignore what Lavoie had done to handle the promised laundry business. I would clearly find here a jury question of sufficient partial performance to deter pretrial disposition by application of the statute of frauds as a matter of law. The real question presented is how far into a transaction can a sharp-dealing business retain protection under the statute of frauds? This is contended to occur while the promise is clearly practicing a character of fraud on the negotiating party to only obtain a reduced price from someone else and without any actual intendment or commitment to do business. The partial performance feature of this transaction is unquestioned since clearly in good faith and with knowledge and encouragement of the negotiating party, Lavoie incurred substantial expenses by reliance on advice about the expectancy of doing the laundry. I would follow Lavoie’s argument and authority to address this issue:
[T]he “part performance” doctrine would apply to the facts of this case. That doctrine has been articulated by [2 A.] Corbin, [Corbin on Contracts ] § 459, at 583-84 [(1950)] as follows:
“The true rule is believed to be that, wherever there has been a ‘part performance’ that is [of] such a character as to make the restitutionary remedy wholly inadequate, and the facts are such that it is what the courts call a ‘virtual fraud’ for the defendant to refuse performance, equitable remedies are thereby made available to the injured party on the same terms as in other cases. The proof of the oral contract must be clear and convincing, the performance sought must be of a kind that courts of equity ordinarily feel competent to compel, and other similar conditions of the right to equitable relief must exist.”
According to Corbin, supra, § 425 at 464, the type of part performance which is sufficient to take an oral contract from the Statute of Frauds is described below:
“In order that acts of the plaintiff in reliance on the oral contract may make it specifically enforceable, there are several requisites, each being somewhat variable in character and enforced with varying degrees of strictness by the courts. (1) The performance must be in pursuance of the contract and in reasonable reliance thereon, without notice that the defendant has already repudiated the contract. (2) The performance must be such that the remedy of restitution is not reasonably adequate [* * *]. (3) The performance must be one that is in some degree evidential of the existence of a contract and not readily explainable on any other ground.”
See Butler v. McGee, 373 P.2d 595 (Wyo.1962) and Vogel v. Shaw, 42 Wyo. 333, 294 P. 687 (1930). See also Allen v. Allen, 550 P.2d 1137 (Wyo.1976).
In analysis of briefing before the trial court and now here, it is not necessary to significantly disagree with much of what is *261related to recognize that a statute of frauds issue is properly presented which is to be weighed against a partial performance deterrence.1 The invitation by Safe-care Health Service for the bidding supplier to expend significant funds for contract performance leads me to the conclusion that we have an issue of fact case. The trial fact finder should be required to determine by trial whether or not a deal was struck by the statements made and the urging to proceed which was provided by Safecare Health Service. The substance' of my disagreement with the trial court is acceptance of a decision by summary judgment where a factual decision was made.
At the very minimum, I conclude that this appeal should have been submitted to the litigants for re-briefing so that they would have had some opportunity to examine and discuss the issue we now decide.
If issues of decision are not to be further developed or even briefed by the litigants before we render a decision, I would reverse and remand for trial.
. In answer to suggestions that Safecare Health Service, as a bargaining party, never got to the minister for the wedding, I would expound the idea that under the circumstances, an advance non-commitment letter provided to Lavoie would have served admirably to give warning and preclude damage to Lavoie. This would have been true, although perhaps not providing the negotiative leverage with the existent supplier, a Casper laundry, which was arguably Safe-care Health Service’s negotiating factor in extending the original invitation to bid. A non-commitment communication with an invitation to bid simply states that written acceptance of a bid is required to create any obligation and that in advance of the acceptance, no occurrence of expenses for anticipated performance would be justified or recognized as a basis for obligation. This is the "when you can perform, we may negotiate" message. In the analogy originally started in this footnote, the subject can be addressed within the profundity of “Do not listen to my words, my intentions are only dishonorable."