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, *429868 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 *430and whether Capshaw substantially performed, I concur.