(specially concurring).
{26} I concur in affirmance, though with some trepidation. The opinion applies the principles of C.R. Anthony Co. and Mark V, Inc. v. Mellekas, 114 N.M. 778, 845 P.2d 1232 (1993), with full force to reach its result. Of course, if we were dealing with private parties there would be no question that our resolution of the issue would be correct. But, we are dealing with a public entity and, though it does not control here, I believe Section 37-l-23(A) does place limits on the reach of C.R. Anthony Co. and Mark V in public sector contract cases. We do not reach that limit here.
{27} There are four factual circumstances that focus the difficulties in this case. First, we are indisputably dealing with a “valid written contract” in the form of a negotiated union agreement. The agreement places on the parties the obligation to “participate and fully implement the UNMpact classification and compensation study.” Second, the trial court found that Carkeek told the union representative during negotiations that UNMPact would only use the Albuquerque Police Department (APD) and Bernalillo County Sheriffs Office (BCSO) to set the UNMPact pay scale for its police officers, and the union agreed to the contract relying on Carkeek’s representations. Third, UNMPact-which apparently covered essentially all of UNM’s non academic staff-was not complete and had not been accepted by UNM senior management or the Board of Regents when Carkeek made her representations. In particular, none of the material available to the employees included any detail about the comparable data being considered to set pay scales. Fourth, when UNMPact was finalized, UNM did not limit itself to APD and BCSO pay scales.
{28} The trial court determined, and we agree, that the reference to UNMPact in the agreement is ambiguous, thus allowing the union representatives to testify what the provision meant to them when they agreed to the provision. Accepting the union’s understanding of the term can be seen as simply resolving the ambiguity in a reasonable manner applying accepted contract law. Restatement (Second) of Contracts § 201(2) states:
(2) Where the parties have attached different meanings to a promise or agreement or a term thereof, it is interpreted in accordance with the meaning attached by one 'of them if at the time the agreement was made
(a) that party did not know of any different meaning attached by the other, and the other knew the meaning attached by the first party; or
(b) that party had no reason to know of any different meaning attached by the other, and the other had reason to know the meaning attached by the first party.
This section cited with approval in Pope v. Gap, Inc., 1998-NMCA-103, ¶ 16, 125 N.M. 376, 961 P.2d 1283.
{29} The trial court’s findings of fact can be read to mean that the union and UNM representatives attached the same meaning to the UNMPact provision at the time the agreement was signed.
{30} It cannot be denied, however, that the effect of the trial court’s decision, and our affirmance, is to impose a largely uncontemplated outcome on UNM’s policy making process.1 UNMPact was clearly a huge undertaking subject to the scrutiny and decision at the highest levels of UNM’s administrative structure. It is problematic whether the union’s reliance on Carkeek’s statements about the content of an unfinalized study should be deemed reasonable. Thus, there is force to UNM’s argument that the trial court’s ruling creates a new agreement between the parties.
{31} Analytically, this case falls in the gap between cases such as Campos de Suenos and Trujillo v. Gonzales, 106 N.M. 620, 747 P.2d 915 (1987), on the one hand and Garcia v. Middle Rio Grande Conservancy Dist., 121 N.M. 728, 918 P.2d 7 (1996), and Handmaker on the other.
{32} In Trujillo, our Supreme Court held that the oral promises by a majority of the county commissioners to the plaintiff that he would be hired for a two-year term could not be used to override or contradict the explicit terms of the county commission minutes appointing him as an at will employee. Trujillo, 106 N.M. at 621, 747 P.2d at 916. Trujillo preceded New Mexico’s abandonment of the so-called “four corners standard” in C.R. Anthony Co. and Mark V. As such, its treatment of the plaintiffs ambiguity argument is somewhat dated and suspect. It is clear, however, that Trujillo treated Section 37-1-23(A) as imposing a real limit on the use of oral representations to escape or change unambiguous written terms of agreement.
{33} Campos de Sueños held that partial writings could not be used to create an enforceable agreement. We refused to “cobble together” a “slew of partial writings” as a means of finding an implied-in-fact contract between the parties because doing so would undermine the purpose of requiring a valid written contract. Campos de Suenos, 2001-NMCA-043, ¶ 18, 130 N.M. 563, 28 P.3d 1104. We emphasized that apart from helping to prevent fraud, the requirement of Section 37-l-23(A) was intended by the legislature to reinstate sovereign immunity from suits sounding in contract, excepting only written contracts. Id. ¶ 13. Campos de Sueños made clear that the risk of loss in marginal transactions is on the party dealing with the governmental entity. Id. ¶ 14.
{34} Campos de Sueños teaches that New Mexico courts will be very cautious in imposing contractual obligations on public entities covered by Section 37-l-23(A) in the absence of a “valid written” document accepted by the public entity at the culmination of a proper procedure.
{35} An exception to this approach is found in Garcia and Handmaker, both of which involve employee claims. In Garcia, our Supreme Court held that in proper circumstances a personnel manual could be enforced against a public entity as a contractual obligation even though there was no writing specifically incorporating it into the employment relationship. The Supreme Court held that no policy embodied in Section 37-1-23(A) was violated by enforcing personnel manuals adopted by public employers.
{36} Similarly, Handmaker arose from a contract dispute with an employee. The Supreme Court opinion quickly determined that Section 37~1~23(A) was not directly implicated in the case because the employee relied on his written employment contract for his claim and did not assert any other right based on unwritten agreements. 1999-NMSC-043, ¶ 17,128 N.M. 328, 992 P.2d 879. The Court analyzed Dr. Handmaker’s claims, applying C.R. Anthony Co. and Mark V to decide whether the written contract was ambiguous. Finding an ambiguity, the Court remanded the case for trial.
{37} Broadly speaking, Trujillo and Campos de Sueños address issues surrounding the creation of new contractual relationships whereas Garcia and Handmaker involve disagreements about the details of an existing employment relationship evidenced by a writing.
{38} In this case, we have a writing involving an employment relationship which is reasonably susceptible to different interpretation (i.e. whether the agreement to “participate in and fully implement UNMpact” means what the union representatives were told or whether it means what the administration decided at the end of its decision process). On balance I conclude that this fact pattern is more akin to Garcia and Handmaker than Trujillo and Campos de Sueños. I do not believe the policies underlying Section 37-l-23(A) are threatened by our holding.
. I use the modifiers because in this context UNM must be charged to some degree with knowledge of the statement and offers made by its negotiating representatives.