OPINION
{1} This appeal addresses whether a contract implied in fact can satisfy the requirement of a “valid written contract” such that it overcomes governmental immunity from suit under NMSA 1978, § 37-l-23(A) (1976). The question is posed in the context of a commercial sale of a privately-owned sports facility to the County of Bernalillo; a sale that fell through before the parties reached agreement on an express written contract. We are asked to expand the analytical framework of Garcia v. Middle Rio Grande Conservancy District,
BACKGROUND
{2} Campos de Sueños (CDS) leased a thirty-seven acre lot on the mesa just outside of Albuquerque’s west city limits on which it constructed a softball and baseball park. After the park opened, CDS proposed to sell the ballpark to Bernalillo County. The proposal included the improvements CDS had constructed as well as the underlying real estate. CDS could offer the real estate for sale because its lease contained an option to purchase from the owner, Westland Development Corporation. The County subjected the proposal to a feasibility study.
{3} At a public meeting held on December 4, 1996, the Bernalillo County Commission weighed various options regarding the CDS proposal, including whether to purchase, how much land to purchase beyond the ballpark, the possible addition of amenities and improvements, and most importantly, whether to issue project revenue bonds and how to pay for them. Ultimately, the Commission voted 3-2 in favor of an option that included purchasing the improvements and the land they were on, plus an additional sixty-three acres of land owned by Westland that surrounded the ballpark. For two months after the December 4,1996, meeting, CDS and the County attempted to negotiate a proposed sales agreement for the ballpark, but the parties could never agree to 'the terns of sale. No written contract for the sale of the ballpark was ever executed by the parties. For reasons not disclosed by the record, the County never issued bonds or otherwise secured financing to purchase the ballpark. Eventually, the County decided not to purchase and, in May 1997, informed CDS in writing of that decision.
{4} After the December 4,1996, vote, CDS thought it had an enforceable understanding that the County would buy the ballpark, and therefore CDS did not aggressively market its fields for the upcoming summer softball season. When the County informed CDS that funding would not be forthcoming, effectively cancelling its prоposed purchase, CDS found its financial position severely compromised. Fewer teams had contracted with CDS to use the fields for the 1997 summer season. The decreased revenue was inadequate to meet its lease payments to West-land, causing CDS to default. When West-land informed CDS that it intended to take over the ballfields as a result of the default, CDS filed suit against Bernalillo County for breach of contract. CDS sought $277,500 in damages for its diminished earnings for the 1997 softball season, plus $1,650,000 for the value of the improvements that it had built and then lost to Westland.
{5} CDS alsо alleged that over the course of constructing and operating its facility, CDS had adhered to all of Bernalillo County’s zoning regulations, which cost $204,500. According to CDS, Bernalillo County had relaxed its zoning standards for the only other privately-owned ballpark, Albuquerque Sportsplex (Sportsplex), due to political favoritism. CDS included a claim in its lawsuit against individual commissioners alleging that the disparate enforcement of zoning regulations constituted illegal discrimination.
{6} On a motion for summary judgment, the County argued (1) it was immune from suit for breach of an unwritten contract pursuant to Section 37-l-23(A), and (2) that individual commissioners had qualified immunity from the suit for discrimination under 42 U.S.C. § 1983. The district court rejected both claims.
{7} As for the first claim, the district court reasoned that Section 37-l-23(A) “is in the nature of an extension of the statute of frauds.” Just as courts have created exceptions to the statute of frauds, the district court concluded that exceptions to the statutory requirement of a valid written contract could be made under Garcia,
{8} The County and its individual commissioners (Defendants) timely filed an interlocutory appeal addressing the questions of governmental and qualified immunity, which we granted, treating it as a writ of error. See Handmaker v. Henney,
DISCUSSION
{9} Appeals from a summary denial of immunity from suit are subjected to a review process that is more complex than a review of ordinary summary judgment decisions. The complexity arises, in part, because a party losing its immunity from suit in an adverse summary judgment decision may file a writ of error seeking immediate review of that decision in order to protect its right not to stand trial. Id. However, as Hand-maker makes clear, not every challenge to a denial of immunity is appropriate for immediate, collateral review because some assertions of immunity are inseparable from the merits of the ease. Id. ¶ 16. Handmaker counsels us to limit review by writ of error to immunity matters in “ ‘cases presenting more abstract issues of law.’ ” Id. (quoting Johnson v. Jones,
{10} Once the decision has been made to review a summary denial of immunity, we resolve evidentiary issues as we do in any summary judgment ease, that is, “in the light most favorable to the party opposing the motion.” Carrillo v. Rostro,
Section 37-l-23(A) Is an Immunity Statute, Not a Statute of Frauds
{11} The County asserts that unless CDS can produce a “valid written contract,” the County is immune from suit for breach of contract. The County relies on Section 37-1-23(A), and insists that the plain language of the statute controls the issue. Under Section 37-l-23(A), “[gjovernmental entities are granted immunity from actions based on contract, except actions based on a valid written contract.”
{12} CDS contends that Section 37-1-23(A), like the statute of frauds, can be satisfied by partial writings that do not meet the standards of a completely executed contract, as long as the writings evidence a contractual agreement and satisfy the anti-fraud purpose of the statute of frauds. Essentially, CDS maintains that wе should view Section 37-1-23(A) as a statute of frauds for governmental entities and read into it traditional exceptions that apply to the statute of frauds.
{13} Although requiring a “valid written contract” does prevent fraud, that condition serves a distinctly different purpose. As our Supreme Court has previously stated, the legislature wrote Section 37-l-23(A) “to reinstate sovereign immunity” in the wake of Hicks v. State,
{14} The significance of that condition requires us to consider the policy behind statutory immunity from suit. The overarching policy for the legislative grant of immunity is to “protect the public purse,” by requiring that “parties seeking recovery from the state for benefits conferred on it have ‘valid written contracts.’ ” Hydro Conduit Corp.,
{15} The distinction between immunity from suit, which Section 37-l-23(A) provides, and a mere defense to liability, as with the statute of frauds, also informs our decision today. See Handmaker, 1999 NMSC 043, ¶ 14,
{16} We do not accord the same procedural primacy to claims under the statute of frauds. The statute of frauds, being in the nature of an affirmative defense to liability, is ordinarily reviewed after an appeal from a decision on the merits. See Allen v. Bd. of Educ.,
{17} Our immediate review of immunity claims by writ of error is usually reserved for discrete legal issues that do not depend on extensive factual analysis for their resolution. Handmaker,
{18} CDS offers a slew of partial writings as evidence of its contract with the County. To consider those writings in proper context, the district court had to examine аll of the evidence before it to reach the conclusion that, in toto, an implied contract existed. Allowing CDS to cobble together a contract in such a manner undermines the purpose of having a comprehensive document, “a valid written contract,” that defeats governmental immunity. Arguably, review of such implied contracts is so fact-intensive that it pushes the limits of the collateral order doctrine. See Handmaker,
{19} For all of these reasons, and especially in light of the legislative purpose to reassert sovereign immunity over suits based on unwritten contracts, we hold that Section 37-1-23(A) is an immunity statute, not a statute of frauds. Accordingly, we reject the proposition that evidence of partial writings sufficient to satisfy the common-law statute of frauds would constitute compliance with Section 37-1-23(A). Cf. Jennings v. Ruidoso Racing Ass’n,
CDS Cannot Affect the Immunity Granted by Section 37-l-23(A)
{20} CDS and the County never entered into an express written contract for the sale of the ballpark. Neither did the parties ever execute a formal agreement in principle. The December 4, 1996, commission hearing and vote left many of the major elements of the proposed purchase unresolved. Indeed, CDS and the County continued to negotiate during the months following that meeting, and one of the matters negotiated, unsuccessfully as it turned out, was a contract of sale.
{21} We are struck by how much of the proposed sale remained unresolved by the December 4, 1996, vote, including water rights, financing, inspection rights, tax liabilities, closing costs, and date of closing. Significantly, the vote did not attempt to coordinate the purchase of the improvements from CDS with the purchase of the real estate from Westland. Nor did the vote settle the question of financing, which is always critical to any large public purchase. In fact, the commission never approved a financial resolution for the purchase of the facility.
{22} Even the sale price for the improvements prоved mercurial. The initial asking price through the fall of 1996 was the appraised value of the improvements, $2,108,621. The supplemental information for the December 4,1996, committee meeting reported that CDS had lowered the asking price to $1,800,000, reflecting, in part, that CDS would keep the liquor license included in the original appraised value. However, at the hearing, CDS dropped the price to $1,650,000. During the period of negotiations, following the vote on December 4, 1996, county officials pushed to have the price reduced yet again.
{23} Despite the absence of an express written contract, CDS argues that an implied-in-fact contract satisfies Section 37-1-23(A). CDS contends it can prove the County agreed to purchase an identifiable property at a fixed price, and it offers various writings, such as transcripts of meetings, staff summaries, and the like to prove the terms. According to CDS, ambiguities over terms such as water rights, financing, closing dates, closing costs, and taxes are for the trial court to resolve as it does any other question of fact.
{24} CDS’s argument relies extensively on Garcia,
{25} In Garcia,
{26} CDS urges us to expand the application of Garcia to cases beyond the employment arena. We have grave reservations with the proposition that Garcia allows implied-in-fact contracts outside of the employment context to override governmental immunity. Contracts for employment represent a unique body of law. They must be considered in light of the at-will employment rule which allows an employer to terminate an employee “for good cause, for no cause or even for cause morally wrong.” Vigil v. Arzola,
{27} As a practical matter, most employment agreements in the public sector are implied-in-fact, rooted in the conduct of the parties and in a maze of personnel rules and regulations, as well as employee manuals that apply generically to all employees. Because such employee manuals are issued to government employees in a unilateral manner and must be accepted by an employee as a condition of employment, they become the binding surrogates for an express employment contract in public sector employment situations.
{28} The existence of the personnel manual became the driving force behind the result reached in Garcia. If not for the vision of the Garcia opinion, few public employees could ever sue for' breach of contract, no matter how egregious the breach and no matter how well-documented the implied-in-fact relationship with the employer. The legislative drafters of Section 37-l-23(A) could not have intended such an injustice. Given the particular nature of employment law, we decline to expand the Supreme Court’s holding in Garcia, beyond the employment arena. Garcia,
{29} We acknowledge the unfairness that may sometimes result from holdings such as the one we reach today. As alleged in the pleadings and suggested in the documents, CDS casts itself in the image of a business entity proceeding in good faith only to be strung along by the County and eventually abandoned, either due to bureaucratic indifference or political caprice. However, the question we must ask-beeause the legislative policy behind Section 37-l-23(A) demands that we ask it-is who should bear the financial risk, the business entity or the taxpayer? The Bernalillo County taxpayer will ultimately be a victim if the County has to buy a ballpark it cannot afford. One way or another, the taxpayer will be held financially accountable if CDS is allowed to sue and recover consеquential damages for the breach of an implied-in-fact agreement, without the benefit of demanding that the agreement rise to the level of formality, and public scrutiny, that accompanies an express written contract.
{30} Unlike the taxpayer, the astute business person has some ability to take protective action by limiting expenditures and other, potentially adverse consequences until a “valid written contract” from the governmental entity is actually in hand. The innocent taxpayer is comparatively helpless. The legislаtive choice inherent in Section 37-1-23(A) recognizes that as between the two parties, business person or taxpayer, the latter most needs legal protection in the form of a governmental immunity from suit. “[T]he legislature has decreed that the risk of loss must fall, perhaps as a cost of doing business,” on business entities who fail to secure written contracts, and not on the taxpayer. Hydro Conduit Corp.,
Promissory Estoppel Does Not Apply
{31} In an attempt to circumvent governmental immunity for claims based on contract, CDS advances a theory of promissory estoppel that would рreclude the County from asserting that “no enforceable contract exists.” CDS relies extensively on statements of county officials, including individual commission members, which allegedly took place outside of any duly constituted meeting of the County Commission. CDS does not attempt to explain or distinguish the only case on point, Trujillo v. Gonzales,
{32} Even were we to assume that promissory estoppel could overcome governmental immunity after Trujillo, a proposition that we seriously doubt, it would fail here. The County’s actions are not the kind of “shocking degree of aggravated and overreaching conduct” that would permit the application of estoppel in the first place. State ex rel. State Highway Dep’t v. Yurcic,
The Unequal Zoning Enforcement as Alleged Did Not Violate the Equal Protection Clause
{33} CDS also alleges that individual county commissioners violated its right to equal protection of the law by encouraging the County’s zoning department not to еnforce its regulations against the Sportsplex, CDS’s only privately-owned competitor. The individual county officials responded with a claim of qualified immunity. They correctly point out that to overcome their assertions of qualified immunity, CDS “must demonstrate that (1) the defendant’s alleged conduct violated a constitutional or statutory right, and (2) the right was clearly established at the time of the conduct.” Williams,
{34} Although unequal application of the zoning regulations raises serious questions,
[t]he unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination.
Snowden v. Hughes,
{35} The record fails to suggest that the alleged actions taken by individual county commissioners were done with discrimination against CDS in mind. None of the affidavits filed in response to the motion for summary judgment suggests that the treatment afforded the Sportsplex was designed to compromise the viability of CDS’s ballpark. The complaint does not even imply that the actions taken with regard to the Sportsplex were at all related to CDS. The complaint merely claims that the treatment was unfair because CDS spent money to comply with zoning regulations that the Sportsplex did not have to spend. For an equal protection allegation to succeed, CDS must demonstrate that the zoning irregularities were purposefully designed to benefit the Sportsplex at the еxpense of CDS. Absent any showing, or even a naked claim, that the defendants aided the Sportsplex while casting an “evil eye” toward CDS, the equal protection claims fails. Barber’s Super Mkts., Inc.,
CONCLUSION
{36} We reverse the district court’s determination that an implied-in-faet contract overcame the County’s assertion of governmental immunity under Section 37-lT23(A). We also reverse the district court’s determination that individual county commissioners were not entitled to qualified immunity. We remand for the entry of summary judgment in favor of all Defendants.
{37} IT IS SO ORDERED.