dissenting.
I agree with Part II of the majority’s opinion which affirms the district court’s entry of summary judgment on Mr. Zaccar-di’s claim for wrongful discharge. However, I cannot concur in the majority’s opinion reversing the district court’s summary dismissal of plaintiff’s claim for breach of contract.
There are times when a personnel manual can be the basis of an implied contract. However, under general contract theory, Zale’s personnel manual fails to rise to that level.
*1478An implied contract is inferred from “the circumstances surrounding the transaction making it reasonable ... [to assume] that a contract existed between [the parties] by tacit understanding.” Black’s Law Dictionary 292 (5th ed. 1979). Thus, the mere definition of an implied contract supports the conclusion that a contract or a modification of an earlier contract could not be implied from Zale’s personnel guide. In other words, from the circumstances it cannot be inferred that both parties intended to contract.
This requisite intent to form a contract is also termed “meeting of the minds.” A meeting of the minds is no less a requirement in implied contracts than in express contracts. See Altman v. Alaska Truss Mfg. Co., Inc., 677 P.2d 1215 (Alaska 1983); Pyeatte v. Pyeatte, 135 Ariz. 346, 661 P.2d 196 (Ct.App.Ariz.1982); ARA Manufacturing v. Cohen, 654 P.2d 857, 859 (Ct.App.Colo.1982); Bell v. Hegewald, 95 Wash.2d 686, 628 P.2d 1305 (1981). This requisite intent, or meeting of the minds is first to be determined by the objective manifestation of the parties. Trujillo v. Glen Falls Ins. Co., 88 N.M. 279, 540 P.2d 209 (1975). Zale’s objective intent was expressed in the manual in the statement, “This manual is not intended and shall not be interpreted to be a formal legal contract, binding on the company.” A more definite statement of the intent not to be bound is difficult to imagine. The manual could not have been the basis of a contract, either express or implied, since this statement precludes a “meeting of the minds.” The elements of a contract, either express or implied, have not been met.
Likewise, the manual cannot constitute a modification of a contract. Modification, like an original contract, requires the intent to be bound, or a meeting of the minds. The preceding argument equally applies to a modification.
Both the majority and the appellant primarily rely on Forrester v. Parker, 93 N.M. 781, 606 P.2d 191 (1980) and Lukoski v. Sandia Indian Mgmt. Co., 106 N.M. 664, 748 P.2d 507 (1988). In Forrester, the New Mexico Supreme Court ruled that an implied contract had been formed based on a personnel policy guide. Forrester, 606 P.2d at 192. The court cited several factors for the basis of its decision: (1) The guide was in effect when the plaintiff started employment; (2) The guide was followed regarding other aspects of the plaintiff’s employment; (3) The letter terminating the plaintiff’s employment recited that termination was pursuant to the guide; (4) The defendant stated that the guide was “standard operating procedure.” There is no indication that the guide in Forrester contained a statement of the defendant’s intent not to be bound. The court found the plaintiff reasonably relied on the guide. From these factors, the court found an implied contract. Likewise, in Lukoski the New Mexico Supreme Court found a modification of the employment relationship based on a personnel guide. The factors on which the court based its decision are: (1) The plaintiff was required to sign an agreement that he would conform to the stated policies and procedures contained in the manual; (2) “[T]he language of the handbook [did] nothing to alert an employee against placing reliance on any statement [in the handbook] as a unilateral expression of the [defendant’s] intention.” Lukoski, 748 P.2d at 509. Since the factors in Forrester and in Lukoski are not present in the case at bar, reliance on these cases by the majority to support its opinion is misplaced.
This misplaced reliance is emphasized by the court in Lukoski, 748 P.2d at 509-10, quoting Wagenseller v. Scottsdale Memorial Hosp., 147 Ariz. 370, 383, 710 P.2d 1025, 1038 (1985) (en banc):
We do not mean to imply that all personal manual [sic] will become part of employment contracts. Employers are certainly free to issue no personnel manuals at all or to issue a personnel manual that clearly and conspicuously tells their employees that the manual is not part of the employment contract and that their jobs are terminable at the will of the employer with or without reason. Such actions ... instill no reasonable expectations of job security and do not give employees *1479any reason to rely on representations in the manual....
Lukoski, 478 P.2d at 509-10.
In the ease at bar the personnel manual clearly tells the plaintiff and other employees that the manual is not part of the employment contract. Thus, a reliance on statements in the manual are unreasonable and unjustified. See Lukoski, 748 P.2d at 510. Under the rule stated in Lukoski, there is no implied contract in this case. To hold otherwise would prevent an employer from issuing any employee guidelines without potentially creating an implied contract.
For the reasons stated, I can find no basis for implying a contract based on Zale’s personnel manual. Therefore, I respectfully dissent.
Concurring in part, dissenting in part.