AMUNDSON, Justice
(on reassignment).
Richard F. Weller and Darolyn D. Weller (Weller) appeal from the circuit court decision granting Spring Creek Resort, Inc., John Brakss’ and Marlene Brakss’ (Brakss) [840]*840motion to dismiss for failure to state a claim upon which relief could be granted. We affirm in part, reverse in part, and remand.
FACTS
Brakss have operated and managed the Spring Creek Marina on property leased from the Army Corps of Engineers since 1982. Wellers leased a marina mooring space for their house boat in the 1988 and 1989 seasons. At the end of the 1989 season, Wellers made an oral request to Brakss for the same mooring space for 1990. In January, 1990, Wellers became aware that other lessees of mooring spaces at the marina had received a letter from Brakss informing them that the mooring fees for 1990 should be paid by February 1, 1990. Wellers, at about this time, sent a check for the entire 1990 rent to Brakss in order to reserve their space. Approximately two months after receiving Wellers’ check, Brakss returned same to Wellers. Wellers were advised at this time that due to low water level in the marina, Wellers’ house boat could not be accommodated during 1990. All subsequent efforts made by Wellers to lease a space from Brakss for 1990 were unsuccessful.
Wellers then filed an action against Brakss seeking injunctive relief and damages, both actual and exemplary. Wellers’ complaint alleged causes of action for discrimination, breach of express contract and breach of implied contract. Brakss answered and filed an SDCL 15 — 6—12(b)(5) motion for failure to state a claim upon which relief could be granted. After a hearing on this motion, the trial court entered its order dismissing Wellers’ complaint for failure to state a claim, and this appeal followed.
ISSUE
DID THE TRIAL COURT ERR IN DISMISSING WELLERS’ ACTION FOR FAILURE TO STATE A CLAIM PURSUANT TO SDCL 15 — 6—12(b)(5)?
ANALYSIS
The standard of review for a 12(b)(5) motion is set forth in Norwest Bank Black Hills v. Credit Union, 433 N.W.2d 560, 564 (S.D.1988), as follows:
1. The complaint is to be construed in the light most favorable to the pleading party.
2. Facts, well pleaded, and not merely conclusions may be accepted as true and doubts are to be resolved in favor of the pleader.
3. Pleadings should not be dismissed merely because the court entertains doubts as to whether the pleader will prevail in the action.
4. Rules of procedure favor the resolution of cases upon the merits by trial or summary judgment rather than on failed or inartful pleadings. (Emphasis added.) (Citation omitted.)
With these standards in mind, we address the merits of Wellers’ appeal.
1. Discrimination
A claim of discrimination must be filed with the State Division of Human Rights (State) pursuant to SDCL 20-13-23. The pleadings on record in this case clearly disclose that Wellers did not file any claim of discrimination with State. This is a palpable example of failure of a party to exhaust his/her administrative remedies and this is fatal to a discrimination claim. Light v. Elliott, 295 N.W.2d 724 (S.D.1980). Further, this court has recently held in LaBore v. Muth, 473 N.W.2d 485 (S.D.1991), that a valid claim for discrimination has to be based on a person’s membership in one or more of the classes enumerated in SDCL 20-13-23, i.e., race, color, creed, religion, sex, ancestry, disability, or national origin. The pleading filed by Wel-lers in this case does not give an inkling of any claim of discrimination based on membership in any of the above enumerated classes. Failure to establish membership in a protected class is fatal to a discrimination action. LaBore, supra. For the reasons stated above, we find no error in the trial court’s dismissal of the discrimination claim.
[841]*841
2. Express and Implied Contract
In this jurisdiction, a contract can be either express or implied. SDCL 53-1-3. It is express if the terms are stated in words, oral or written. Anderson v. Dunn, 68 S.D. 479, 4 N.W.2d 810 (1942). An implied contract was defined in Mathews v. Twin City Const. Co. Inc., 357 N.W.2d 500, 507, (S.D.1984), as follows:
An implied contract is one, the existence and terms of which are manifested by conduct. ‘Conduct’ can be both acts and words. By its very nature, an implicit agreement is not as detailed as a written agreement formally negotiated.
An implied contract is a fiction of the law adopted to achieve justice where no true contract exists. Mahan v. Mahan, 80 S.D. 211, 121 N.W.2d 367 (1963).
A contract is implied in fact where the intention as to it is not manifested by direct or explicit words by the parties, but is to be gathered by implication or proper deduction from the conduct of the parties, language used, or acts done by them, or other pertinent circumstances attending the transaction.
80 S.D. at 215, 121 N.W.2d at 369.
Further, this court held in Federal Land Bank of Omaha v. Houck, 68 S.D. 449, 463, 4 N.W.2d 213, 219-20 (1942), that “facts are viewed objectively and if a party voluntarily indulges in conduct reasonably indicating assent he may be bound even though his conduct does not truly express the state of his mind.” See also Mitzel v. Hauck, 78 S.D. 543, 105 N.W.2d 378 (1960).
If, in fact, a valid express contract exists, which establishes the rights of the contracting parties, no implied contract will be or need be inferred. Ryken v. Blumer, 307 N.W.2d 865 (S.D.1981); Mid-America Mktg. v. Dakota Industries, 281 N.W.2d 419 (S.D.1979); Thurston v. Cedric Sanders Company, 80 S.D. 426, 125 N.W.2d 496 (1963).
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AMUNDSON, Justice
(on reassignment).
Richard F. Weller and Darolyn D. Weller (Weller) appeal from the circuit court decision granting Spring Creek Resort, Inc., John Brakss’ and Marlene Brakss’ (Brakss) [840]*840motion to dismiss for failure to state a claim upon which relief could be granted. We affirm in part, reverse in part, and remand.
FACTS
Brakss have operated and managed the Spring Creek Marina on property leased from the Army Corps of Engineers since 1982. Wellers leased a marina mooring space for their house boat in the 1988 and 1989 seasons. At the end of the 1989 season, Wellers made an oral request to Brakss for the same mooring space for 1990. In January, 1990, Wellers became aware that other lessees of mooring spaces at the marina had received a letter from Brakss informing them that the mooring fees for 1990 should be paid by February 1, 1990. Wellers, at about this time, sent a check for the entire 1990 rent to Brakss in order to reserve their space. Approximately two months after receiving Wellers’ check, Brakss returned same to Wellers. Wellers were advised at this time that due to low water level in the marina, Wellers’ house boat could not be accommodated during 1990. All subsequent efforts made by Wellers to lease a space from Brakss for 1990 were unsuccessful.
Wellers then filed an action against Brakss seeking injunctive relief and damages, both actual and exemplary. Wellers’ complaint alleged causes of action for discrimination, breach of express contract and breach of implied contract. Brakss answered and filed an SDCL 15 — 6—12(b)(5) motion for failure to state a claim upon which relief could be granted. After a hearing on this motion, the trial court entered its order dismissing Wellers’ complaint for failure to state a claim, and this appeal followed.
ISSUE
DID THE TRIAL COURT ERR IN DISMISSING WELLERS’ ACTION FOR FAILURE TO STATE A CLAIM PURSUANT TO SDCL 15 — 6—12(b)(5)?
ANALYSIS
The standard of review for a 12(b)(5) motion is set forth in Norwest Bank Black Hills v. Credit Union, 433 N.W.2d 560, 564 (S.D.1988), as follows:
1. The complaint is to be construed in the light most favorable to the pleading party.
2. Facts, well pleaded, and not merely conclusions may be accepted as true and doubts are to be resolved in favor of the pleader.
3. Pleadings should not be dismissed merely because the court entertains doubts as to whether the pleader will prevail in the action.
4. Rules of procedure favor the resolution of cases upon the merits by trial or summary judgment rather than on failed or inartful pleadings. (Emphasis added.) (Citation omitted.)
With these standards in mind, we address the merits of Wellers’ appeal.
1. Discrimination
A claim of discrimination must be filed with the State Division of Human Rights (State) pursuant to SDCL 20-13-23. The pleadings on record in this case clearly disclose that Wellers did not file any claim of discrimination with State. This is a palpable example of failure of a party to exhaust his/her administrative remedies and this is fatal to a discrimination claim. Light v. Elliott, 295 N.W.2d 724 (S.D.1980). Further, this court has recently held in LaBore v. Muth, 473 N.W.2d 485 (S.D.1991), that a valid claim for discrimination has to be based on a person’s membership in one or more of the classes enumerated in SDCL 20-13-23, i.e., race, color, creed, religion, sex, ancestry, disability, or national origin. The pleading filed by Wel-lers in this case does not give an inkling of any claim of discrimination based on membership in any of the above enumerated classes. Failure to establish membership in a protected class is fatal to a discrimination action. LaBore, supra. For the reasons stated above, we find no error in the trial court’s dismissal of the discrimination claim.
[841]*841
2. Express and Implied Contract
In this jurisdiction, a contract can be either express or implied. SDCL 53-1-3. It is express if the terms are stated in words, oral or written. Anderson v. Dunn, 68 S.D. 479, 4 N.W.2d 810 (1942). An implied contract was defined in Mathews v. Twin City Const. Co. Inc., 357 N.W.2d 500, 507, (S.D.1984), as follows:
An implied contract is one, the existence and terms of which are manifested by conduct. ‘Conduct’ can be both acts and words. By its very nature, an implicit agreement is not as detailed as a written agreement formally negotiated.
An implied contract is a fiction of the law adopted to achieve justice where no true contract exists. Mahan v. Mahan, 80 S.D. 211, 121 N.W.2d 367 (1963).
A contract is implied in fact where the intention as to it is not manifested by direct or explicit words by the parties, but is to be gathered by implication or proper deduction from the conduct of the parties, language used, or acts done by them, or other pertinent circumstances attending the transaction.
80 S.D. at 215, 121 N.W.2d at 369.
Further, this court held in Federal Land Bank of Omaha v. Houck, 68 S.D. 449, 463, 4 N.W.2d 213, 219-20 (1942), that “facts are viewed objectively and if a party voluntarily indulges in conduct reasonably indicating assent he may be bound even though his conduct does not truly express the state of his mind.” See also Mitzel v. Hauck, 78 S.D. 543, 105 N.W.2d 378 (1960).
If, in fact, a valid express contract exists, which establishes the rights of the contracting parties, no implied contract will be or need be inferred. Ryken v. Blumer, 307 N.W.2d 865 (S.D.1981); Mid-America Mktg. v. Dakota Industries, 281 N.W.2d 419 (S.D.1979); Thurston v. Cedric Sanders Company, 80 S.D. 426, 125 N.W.2d 496 (1963).
Wellers’ amended complaint alleges that they advised Brakss of their desire to rent their customary space in 1990 at the conclusion of the 1989 season; they made improvements to their space in 1989 to accommodate their space; they sent a check to Brakss for the 1990 rent, which was returned by Brakss after approximately two months. Brakss “[had] an implied contract with plaintiffs (Wellers) — Count IV — BREACH OF CONTRACT and the conduct of Brakss surrounding the 1990 season created an implied contract between the parties — Count V — BREACH OF IMPLIED CONTRACT.” By reading the allegations in the amended complaint, one can only conclude that there is no allegation of any express agreement having been entered into by the parties for the 1990 season. In fact, as noted above, Wellers alleged only that Brakss “by developing the facilities at the Spring Creek Marina and advertising them, ... have impliedly contracted with [Wellers] and other members of the public_” This amended complaint can only be construed as containing allegations of conduct on the part of Brakss which could serve as the basis for a determination that an implied contract existed or was created for the 1990 season. In Continental Ins. v. Page Engineering Co., 783 P.2d 641, 651 (Wyo.1989), the court was considering a claim that an implied contract existed and held as follows:
Although the question of whether particular conduct is sufficient to support a finding that an implied contract exists is generally submitted to a trier of fact, the question may be resolved by summary judgment if reasonable minds could not differ. (Citation omitted.)
See also Johnson v. Kreiser’s, Inc., 433 N.W.2d 225 (S.D.1988).
In adhering to the deference to be given to the pleadings in a 12(b)(5) motion, we conclude that sufficient allegations of conduct are pleaded therein so that the appropriate resolution of the implied contract cause of action is upon the merits by trial or summary judgment proceeding.
Affirmed in part, reversed in part, and remanded.
MILLER, C.J., and SABERS, J., concur.
HENDERSON, J., and MOSES, Circuit Judge, dissent.
MOSES, Circuit Judge, for WUEST, J., disqualified.
SDCL 15-6-12(b) only allows “matters outside the pleadings” to be considered under (5) when the trial court has notified the parties of its intention to treat the motion as one for summary judgment under § 15-6-56. This record does not indicate such an intention on the part of the trial court and this court is therefore only ruling on the sufficiency of the facts pleaded.