Great Plains Federal Sav. and Loan Ass'n v. Dabney

Great Plains Federal Sav. and Loan Ass'n v. Dabney
1993 OK 4
846 P.2d 1088
64 OBJ 334
Case Number: 69930
Decided: 01/26/1993
Supreme Court of Oklahoma

 
GREAT PLAINS FEDERAL SAVINGS AND LOAN ASSOCIATION, APPELLANT,
v.
B. WAYNE DABNEY, AN INDIVIDUAL AND VAN DYCK, HAYS, DABNEY, PULLINS, RIVAS &
KINGSOLVER, P.C., A PROFESSIONAL CORPORATION, APPELLEES.

Certiorari to the Court of Appeals, Division 3 Appeal from the District Court of Custer County; Charles L. Goodwin, Trial Judge.

¶0 Appellant brought an action against appellees, attorney and law firm, in tort for malpractice and for breach of a contract between the parties or, alternatively, on a contract between appellees and another whereby appellant claimed third-party beneficiary status. The contract was alleged to pertain to rendering a title opinion on a piece of property and searching certain records in the Grady County Clerk's Office. Appellees filed a motion to dismiss relying on the bar of the two year limitation period for torts found at 12 O.S. 1981 § 95 (Third). In response to the motion appellant waived its tort claim and elected to proceed in contract. It argued the contract claim was not barred having been brought within the three year limitation period found at 12 O.S. 1981 § 95 (Second) for oral contracts. The trial court sustained the motion apparently concluding the action had to be brought in tort. The Court of Appeals affirmed. Held: Taking, as we must, all well-pleaded facts contained in the petition as true, appellant stated a claim based in contract and it was improper at the pleading stage to dismiss the case as barred by the two year limitation period found at § 95 (Third).

CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS OPINION VACATED; TRIAL COURT REVERSED AND CASE REMANDED.

A. Daniel Woska, Kendall W. Tresler, Jeffrey A. Glendening, Janet G. Chesley, Naifeh & Woska, Oklahoma City, for appellant.

Charles F. Alden, III, Julie Trout Lombardi, Holloway, Dobson, Hudson & Bachman, Oklahoma City, for appellees.

LAVENDER, Vice Chief Justice.

[846 P.2d 1089]

¶1 On August 13, 1987 appellant, Great Plains Federal Savings and Loan Association (appellant), sued appellees, an attorney and a law firm (appellees), in tort for legal malpractice and for breach of an oral contract between the parties or, alternatively, a contract between appellees and another whereby appellant claimed third-party beneficiary status. Certain documents were attached to the petition, including a written title opinion from appellees to appellant dated August 14, 1984, a follow-up opinion dated September 24, 1984 and a letter from appellees to appellant dated July 24, 1986 indicating a mortgage of record when the earlier title opinions were rendered was only recently discovered by appellees. Appellees moved to dismiss pursuant to 12 O.S.Supp. 1984 § 2012 (B)(6). They argued the petition failed to state a claim upon which relief could be granted because it showed on its face the action was barred by the two year limitation period found at 12 O.S. 1981 § 95 (Third).

[846 P.2d 1090]

¶2 As pertinent for our decision the petition and the documents attached to it allege the following:

¶3 On August 14, 1984 appellees, by B. Wayne Dabney, sent a title opinion/letter to Bill Davis of appellant, which said it was being sent at Davis' request, an abstract of title certified to October 1, 1975 had been examined, as well as certain instruments recorded in the Grady County Clerk's Office. The letter also detailed the debt to the other financial institution. The last sentence of the letter provides in pertinent part, "[t]his opinion is . . . for loan purposes only and is written for the use and benefit of the bank only." On August 16, 1984 appellant, in reliance upon the letter, loaned Hudson $375,000.00 secured by a real estate mortgage. On September 24, 1984 Dabney sent a follow-up title opinion/letter to Davis opining the mortgage to appellant "appears to be a valid and existing second mortgage lien upon the . . . property." (emphasis in original) Appellant's loan to Hudson was due and payable, along with certain interest, on February 14, [846 P.2d 1091] 1985. Hudson defaulted. On July 24, 1986 Dabney sent a further letter to Davis in care of an attorney advising an existing mortgage to a third financial institution was discovered which had been filed and recorded in the records of the County Clerk of Grady County on March 10, 1982 and telling Davis, "[i]t appears that this mortgage is prior to your mortgage on the property." Appellant sued for the principal loan amount, interest, costs and attorney fees.

¶4 As we view the allegations and the reasonable inferences to be drawn from them, appellant alleged not only that appellees were engaged to perform a title opinion relying on an abstract of title certified by an independent abstracting company, but they were engaged either by appellant itself or, alternatively, by Hudson, with appellant being a specifically intended third-party beneficiary, to search the records of the County Clerk from the period of the abstract of title noted in the August 14th title opinion/letter (i.e. October 1, 1975) to the date of the August 14th letter in 1984. In essence, part of appellees' responsibilities under the purported oral contract was to act like an abstractor to search the records. Although not expressly alleged in the petition or documents attached thereto we believe the reasonable inference flowing from the petition and documents is appellees were alleged to have agreed to furnish a correct statement of those documents affecting the title for loan purpose from October 1, 1975 (the certification date of the abstract reviewed) to the date of the title opinion in August 1984.

¶5 We have held when an abstracting company breaches an oral agreement to diligently search real estate records, provide an abstract of title and a certificate thereof, the cause of action is one founded on the breach of an oral contract and is governed by the three year limitation period. Close v. Coates, 187 Okla. 315, 102 P.2d 613 (1940); Freeman v. Wilson, 105 Okla. 87, 231 P. 869 (1924); Garland v. Zebold, 98 Okla. 6, 223 P. 682 (1924). The cause of action accrues on the delivery date of the certificate of title. Close v. Coates, supra. We can hold no differently merely because a lawyer or law firm are alleged to have entered into a similar type of oral contract. Accordingly, the earliest point the three year limitation period would begin to run would be August 14, 1984, the date of the initial title opinion.

¶6 Appellees argue the instant case should be controlled by Funnell v. Jones, 737 P.2d 105 (Okla. 1985), cert. denied, 484 U.S. 853, 108 S. Ct. 158, 98 L. Ed. 2d 113 (1987), a case where we applied the two year tort limitation period to a legal malpractice case. Appellees' reliance on Funnell is misplaced. The opinion in Funnell gives no indication a separate contract theory was alleged there or that the plaintiffs there attempted to rely on the three year limitation period for oral contracts. Thus, our statement in Funnell to the effect an action for malpractice, whether legal or medical, though based on a contract of employment, is an action in tort, must be taken in the context it was made, to wit: determining whether the two year limitation for torts was tolled based on allegations of fraudulent concealment on the part of defendant attorneys and that no acts alleged against defendants occurred within the two years immediately [846 P.2d 1092] preceding filing of the lawsuit. Id. at 107-108. We did not decide in Funnell a proceeding against a lawyer or law firm is limited only to a proceeding based in tort no matter what the allegations of a petition brought against the lawyer or law firm. We have never so held and, in fact, to so rule would be tantamount to treating lawyers differently than we have treated other professions, something we refuse to do.

¶7 We have held a party may bring a claim based in both tort and contract against a professional and that such action may arise from the same set of facts. Flint Ridge Development Company, Inc. v. Benham-Blair and Affiliates, Inc., 775 P.2d 797, 799-801 (Okla. 1989) (architectural, engineering and construction supervision services). In essence, the holding of Flint Ridge is, if the alleged contract of employment merely incorporates by reference or by implication a general standard of skill or care which a defendant would be bound independent of the contract a tort case is presented governed by the tort limitation period. Id. at 799-801. However, where the parties have spelled out the performance promised by defendant and defendant commits to the performance without reference to and irrespective of any general standard, a contract theory would be viable, regardless of any negligence on the part of a professional defendant. Id. As pertinent here, the specific promise alleged or reasonably inferred from the petition and documents attached thereto was to search the records of the County Clerk for an approximate nine (9) year period and report those records on file affecting the title for loan purposes. Simply, if this was the promised obligation a contractual theory of liability is appropriate which is governed by the three year limitation period applicable to oral contracts.

¶8 Consistent with this view is a case relied on by both parties to support their respective positions, Seanor v. Browne, 154 Okla. 222, 7 P.2d 627 (1932). Seanor holds although the gravamen of an action against a physician is in tort, where a special oral contract is also alleged whereby defendant agreed to cure the injury of plaintiff the action also sounds in contract and use of the three year limitation period is appropriate to the contract portion. Id., 7 P.2d at 627-628, Second Syllabus.

[846 P.2d 1093]

¶9 Appellees also assert the action should not be allowed to go forward on a contract claim on the basis of appellant's claimed third-party beneficiary status. Appellant has sufficiently alleged such status. The primary issue in a case where the suing plaintiff claims third-party beneficiary status is whether the direct parties to the contract intended the third party to have such status. Barbero v. Equitable General Insurance Company, 607 P.2d 670, 673 (Okla. 1980). Where a contract is made expressly for the benefit of a third party that party may avail himself of contractual benefits and maintain an action thereon. Keel v. Titan Construction Corporation, 639 P.2d 1228, 1231 (Okla. 1981). In fact, by statute, "[a] contract, made expressly for the benefit of a third person may be enforced by him at any time before the parties thereto rescind it." 15 O.S. 1991 § 29 .

¶10 Appellees argue, however, the general rule that attorneys are liable for their misdeeds only to their employers, i.e. their clients and normally some privity of contract is necessary between the suing party and the legal practitioner. We do not question the general rule as stated in cases such as Savings Bank v. Ward, 100 U.S. 195, 25 L. Ed. 621 (1879). However, Ward is distinguishable from the present case. First and foremost, no contractual third-party beneficiary status was claimed there. Second, the facts involved were wholly different from the facts alleged here. The attorney in Ward had no knowledge of the purpose his client was obtaining an examination of title. Id. at 197 and 199. The attorney never had any contact with the financial institution. Id. Further, the attorney rendered nothing to the financial institution at its request or on its behalf. Id. at 200. Finally, no statute was involved there, like ours found at 15 O.S. 1991 § 29 , which allows a contract to be enforced which is expressly made for the benefit of a third party.

¶11 Given the rather pointed statement of Dabney contained in the last sentence of the August 14th title opinion/letter to Davis that the letter opinion is written for the use and benefit of appellant only we would be hard-pressed to say a factual question is not raised at the pleading stage as to appellant's status as a third-party beneficiary. As also noted, Dabney's initial letter stated it was being sent at Davis' request. We also note the August 14th letter contained the following language, "[s]ubject to the following objections, exceptions and requirements, I approve the title for loan purposes[]". These allegations at the pleading stage are sufficient to allow the case to go forward and were sufficient to withstand a motion to dismiss for failure to state a claim upon which relief can be granted.

¶12 For the above reasons, the decision of the Court of Appeals is VACATED, the judgment of the trial court dismissing the action is REVERSED and the matter is REMANDED to the trial court for further proceedings.

¶13 HARGRAVE, OPALA, ALMA WILSON, KAUGER and WATT, JJ., concur.

¶14 SUMMERS, J., concurs specially.

¶15 HODGES, C.J., dissents.

¶16 SIMMS, J., not participating.

Footnotes:

1 Section 95 was recently amended by the Forty-Third Legislature in a manner not pertinent here. The amendment concerns time limits for certain types of sexual abuse cases and may be found at 1992 Okla.Sess.Law Serv., Ch. 344, § 1.

2 Much briefing of the parties on appeal and the decision of the Court of Appeals concerns the limitation period for torts found at § 95 (Third) and applicability of the discovery rule to legal malpractice cases. No such argument was made by appellant in its two response briefs to the motion to dismiss filed in the trial court. Although at oral argument in the trial court appellant's attorney mentioned the potential for a fraudulent concealment tolling of the two year statute for torts, neither such an issue nor the discovery issue was contained in either of its response briefs in the trial court. As noted in the text, in its initial response brief appellant expressly waived any theory of liability based in tort and elected to proceed only in contract. Accordingly, it was improper for the Court of Appeals to consider the applicability in this case of any discovery rule issue on appeal. This is so because generally, parties on appeal are limited to the issues presented to the trial court. Jones v. Alpine Investments, Inc., 764 P.2d 513, 515 (Okla. 1987). For this reason we do not consider any issue in this case concerned with the applicability of the discovery rule as it might apply to cases sounding in tort for legal malpractice. This issue was not before the trial court and it cannot be raised for the first time on appeal. For the same reason we do not consider any potential fraudulent concealment issue. We also note in its certiorari petition appellant, as to the contract issue, only questions the Court of Appeals' ruling as to its status, or lack thereof, as a third-party beneficiary and we will, thus, decide that issue.

3 In ruling on a motion to dismiss allegations in the petition must be construed in connection with exhibits attached to the pleading. See Eckel v. Adair, 698 P.2d 921, 923 (Okla. 1984). In other words, it is proper to consider exhibits attached to a petition when ruling on a motion to dismiss for failure to state a claim upon which relief can be granted made pursuant to 12 O.S. 1991 § 2012 (B)(6). In fact, 12 O.S. 1991 § 2010 (C) specifically provides, "[a]ny written instrument which is an exhibit to a pleading is a part thereof for all purposes." Furthermore, in ruling on a motion to dismiss an appellate court must take as true all of the challenged pleading's allegations together with all reasonable inferences which may be drawn from them. Eckel, supra at 923. Although Eckel was litigated in the trial court prior to the effectiveness of the Oklahoma Pleading Code, 12 O.S.Supp. 1984 § 2001 et seq., as amended, and it dealt with review of a judgment which sustained a general demurrer, the comments to § 2012(B)(6) make it clear a motion to dismiss for failure to state a claim upon which relief can be granted under the Oklahoma Pleading Code was intended to take the place of a general demurrer. In pertinent part the Committee Comment to Section 2012 provides:

A motion to dismiss for failure to state a claim upon which relief can be granted under paragraph 6 of subsection B of Section 2012 replaces the code versions of the general demurrer to the pleadings. But a petition should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. (citations omitted)

OKLA. STAT. ANN. tit. 12, § 2012 , Committee Comment to Section 2012 (West). Both § 2012 and § 2010 have remained unchanged since the adoption of the Oklahoma Pleading Code in 1984. Finally, where a petition pleads facts sufficient upon their face to show an action is not barred and has been brought in the time allowed by statute, it is error to sustain a demurrer thereto. First National Bank of Harrah v. Wright, 192 Okla. 182, 135 P.2d 344, Third Syllabus (1943).

4 Of course, we cannot speak to whether or not appellees actually agreed to correctly search and report all such documents. Here we are merely at the pleading stage and we must take as true all well-plead allegations in the petition and documents attached thereto and the reasonable inferences to be drawn therefrom. Eckel v. Adair, note 3, supra.

5 We wish to point out we do not intimate the alleged contract is exactly like one that an abstractor covered by the Oklahoma Abstractors Law, 74 O.S. 1991 § 227.10 et seq. might enter into or that appellees were engaged in conduct subject to that Law. We simply hold on the facts alleged in the petition, with attached documents, and the reasonable inferences to be drawn therefrom, the allegations are sufficiently like the abstracter situation under the cases cited in the text to call for use of the three year limitation period for oral contracts. We also note § 227.29 of the Oklahoma Abstractors Law provides a five year statute of limitation from the date the abstract certificate is issued. Appellant does not argue said limitation period or the Abstractors Law in general is applicable here.

6 We note Funnell cited to Seanor v. Browne when it stated an action for malpractice, whether legal or medical, though based on a contract of employment, is an action in tort governed by the two year limitation period. Funnell, 737 P.2d at 107. Obviously, in that Seanor itself also recognized the potentiality for a contract theory governed by the three year limitation period, Funnell could not have been holding all actions against attorneys for legal or legally related work must be grounded in tort no matter what the lawyer agreed to do or accomplish.

7 We note that although appellant does allege in the petition appellees were negligent in performing under the alleged contract (apparently because appellant mistakenly thought negligence had to be proved even if a specific performance was promised) the petition does not unequivocally indicate the agreement bound appellees only by a requirement of ordinary care in searching for and reporting relevant documents. Accordingly, under our liberal pleading rules and the standard for determining when a motion to dismiss for failure to state a claim upon which relief can be granted should be sustained it was improper to sustain the motion to dismiss. Whether appellees did, in fact, bind themselves to a specific performance without reference to and irrespective of any negligence on their part so as to support a contract action beyond the pleading stage will, of course, have to await further developments in the trial court. At this stage of the proceeding, however, we can express no view as to what the true facts were. This determination can be made only upon further proof. Our decision therefore should not be read to foreclose appellees from pursuing their statute of limitation defense via a motion for summary judgment under the applicable rules set out herein for when an action against a professional may appropriately proceed in contract or, alternatively, would only support an action sounding in tort which would be subject to the shorter two year limitation period of 12 O.S. 1981 § 95 (Third).

8 Appellees' reliance on cases such as Anderson v. Canaday, 37 Okla. 171, 131 P. 697 (1913) and Thomas Fruit Co. v. Levergood, 135 Okla. 105, 274 P. 471 (1929) is also misplaced. Neither of those cases was based on any type of contractual theory. Further, the rule espoused therein to the effect an attorney is not liable to another for the acts of his client based on the attorney's advice in the absence of some type of bad faith on the part of the attorney simply has no application to a situation where, as here, a third-party beneficiary contract is asserted.

9 For cases recognizing attorneys may be liable based on a third-party beneficiary analysis see Annot. "Attorney's liability, to one other than immediate client, for negligence in connection with legal duties," 61 A.L.R. 4th 615, 661-673 (1988).

OPALA, Justice, with whom KAUGER, Justice, joins, concurring.

¶1 The Court of Appeals affirmed the trial court's dismissal (for failure to state a claim) of an action against a lawyer for damages from his failure to discover and [846 P.2d 1094] report a recorded mortgage that should have been found in the course of a title search. The court holds today that the plaintiff's [S & L's] petition

¶2 Where the law imposes a duty in the context of a relationship born of a contract, a person injured by substandard performance of duty that is his/her due need not bring a tort action; nor need he/she elect between remedies. Rather, he/she may press a claim for breach of contract and in tort, if the evidence should support both.

¶3 A plaintiff who states a claim and proves its facts

CONCLUSION

¶4 I would today overrule Seanor

Footnotes:

1 This action was filed August 13, 1987. The sufficiency of the petition under review must be measured by the Oklahoma Pleading Code [Pleading Code], 12 O.S.Supp. 1984 §§ 2001 et seq., which is patterned after the Federal Rules of Civil Procedure.

The terms of 12 O.S.Supp. 1984 § 2008 (A)(1) provide:

"A. CLAIMS FOR RELIEF. A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim or third-party claim, shall contain:
1. A short and plain statement of the claim showing that the pleader is entitled to relief;
* * *.
Relief in the alternative or of several different types may be demanded." [Emphasis mine.]

Section 2008 was amended by Laws 1987, c. 78 § 2, eff. Nov. 1, 1987; the amendment has no effect upon this appeal.

The terms of FED.R.CIV.P. 8(a) provide in pertinent part:

"(a) Claims for relief. A pleading which sets forth a claim for relief . . . shall contain: . . .
(2) a short and plain statement of the claim showing that the pleader is entitled to relief, * * *." [Emphasis mine.]

Rule 8(a) is intended to ensure that the opposing party receive fair notice of the plaintiff's claim and the grounds upon which it rests. Conley v. Gibson, 355 U.S. 41, 47-48, 78 S. Ct. 99, 103, 2 L. Ed. 2d 80, 85 (1957).

2 The terms of 12 O.S. 1984 Supp. § 2012 (B)(6) provide in pertinent part:

". . . the following defenses may at the option of the pleader be made by motion: * * * * * * 6. Failure to state a claim upon which relief can be granted; * * *"

The § 2012(B)(6) dismissal for failure to state a claim upon which relief may be granted is appropriate only when it is beyond a doubt that no factual situation exists which entitles the claimant to relief

3 Under the old common-law forms of action regime, if the plaintiff brought assumpsit, his cause of action was founded on contract; if he brought trespass, case, deceit or trover, the strictures governing tort had to be met. See W. Prosser, The Borderline of Tort and Contract, SELECTED TOPICS ON THE LAW OF TORTS, P. 429-430 (1953). The Code of Civil Procedure which governed in Oklahoma before its repeal in 1984 was designed to eliminate some of the extreme technicalities of common-law procedure. An identical code was in effect in many other states. Even after the code's enactment, some states clung to the "theories of the pleadings" mentality; on the particular facts pleaded or proved, these jurisdictions required that the action be identified as either ex delicto or ex contractu.

Other states (like Oklahoma) let the pleader elect the theory of recovery. Prosser, supra at 430. See Oklahoma Natural Gas v. Pack, 186 Okl. 330, 97 P.2d 768, 770 (1940), where Justice Riley, who was steeped in the tradition and history of the common law, recognized that when the same facts gave rise to both an action ex contractu and ex delicto, the plaintiff could choose between the two theories. See also Keel v. Titan Construction Corporation, Okl., 639 P.2d 1228, 1232 (1982); Hall Jones Oil Corporation v. Claro, Okl., 459 P.2d 858, 861 (1969); Morris v. Barton, 200 Okl. 4, 190 P.2d 451, 458 (1948); Owens v. State, 133 Okl. 183, 271 P. 938, 942 (1928); Chicago, R.I. & P. Ry. Co. v. Harrington et al., 44 Okl. 41, 143 P. 325, 327 (1914); Hobbs v. Smith, 27 Okl. 830, 115 P. 347, 350 (1911).

Many states, including Oklahoma, later adopted the federal notice pleading regime. See 12 O.S. 1984 Supp. §§ 2001 et seq. With federal notice pleading, the doctrine of election of remedies became an anachronism. 12 O.S.Supp. 1984 § 2008 (E)(2); Howell v. James, Okl., 818 P.2d 444, 446-448 (1991). The pertinent terms of § 2008(E)(2) are:

"A party may set forth, and at trial rely on, two or more statements of a claim or defense alternatively or hypothetically, either in one count or defense or in separate counts or defenses. * * *" [Emphasis mine.] Section 2008 was amended by 12 O.S.Supp. 1987, eff. Nov. 1, 1987 ; the amendment has no effect upon this appeal.

Although inconsistent judgments and double recovery may not be allowed, a party may now fully litigate all the theories in one trial. Howell, supra at 447.

4 See e.g., Seanor v. Browne, 154 Okl. 222, 7 P.2d 627, 630 (1932); Funnell v. Jones, Okl., 737 P.2d 105, 107 (1987), cert. den., 484 U.S. 853, 108 S. Ct. 158, 98 L. Ed. 2d 113 (1987), which the court today aptly distinguishes from the case sub judice. See also the dictum in Flint Ridge Dev. v. Benham-Blair & Aff., Okl., 775 P.2d 797, 799 (1989), where we relied on Securities-Intermountain, Inc., v. Sunset Fuel Co., 289 Or. 243, 611 P.2d 1158, 1167 (1980). Oregon, which (unlike Oklahoma) did not replace "fact" pleading with the federal "notice" regime, remains a code-pleading state. Davis v. Tyee Industries, Inc., 295 Or. 467, 668 P.2d 1186, 1192 (1983). The Oregon requirement that the pleader allege in considerable detail those breaches of a written contract that constitute a professional defendant's obligations - instead of allowing expected services to be measured by the tort or contract standards of performance is unknown to the system of notice pleading. See Conley, supra note 1, where the United States Supreme Court notes that in the federal rules regime, pleading is no longer a game of skill in which one misstep may be fatal to the outcome; rather, a pleading's purpose is to facilitate a proper decision on the merits.

5 Howell, supra note 3 at 446-448; Chandler, infra note 14 at 862 n. 13.

6 Seanor, supra note 4.

7 Even after the aberrational Seanor norm appeared on the juristic stage, we continued to afford the pleader an election where the gravamen of an action was not breach of contract but rather the defendant's tortious conduct in the performance of a duty derived from a contractual relationship. See Burton v. Juzwik, Okl., 524 P.2d 16, 18-19 (1974); see also Smith v. Johnston, Okl., 591 P.2d 1260, 1261-1263 (1979).

Several generations of legal encyclopedias published on this side of the Atlantic have considered the common-law rule that permits a pleader in malpractice to bring either a contract or a tort claim against a professional defendant to be in the mainstream of American jurisprudence. See 1 R.L.C. ACTIONS § 7 (1914), citing among others Hobbs, supra note 3, 115 P. at 350; 1 Am.Jur.2d ACTIONS § 32-36 (1962), citing among others Conn v. Hunsberger, 224 Pa. 154, 73 A. 324, 327 (1909); 1 C.J. ACTIONS § 155(9) and 158 (1914), citing among others Lane v. Boicourt, 128 Ind. 420, 27 N.E. 1111, 1112 (1891); 1A C.J.S. ACTIONS § 108 (1985), citing among others Commercial Ins. Co. of Newark v. Apgar, 111 N.J. Super. 108, 267 A.2d 559, 565 (1970). See also 61 Am.Jur.2d PHYSICIANS & SURGEONS. ETC. § 311 (1985), citing among others Kuhn v. Brownfield, 34 W. Va. 252, 12 S.E. 519, 521 (1890).

8 The practice of allowing either a contract or a tort action comes from the English common law. When speaking for the court in Brown v. Boorman, 11 Cl. & F. 1, 8 Eng.Rep. 1003 (1844), Lord Campbell said that "[w]herever there is a contract and something to be done in the course of the employment which is the subject of that contract, if there is a breach of duty in the course of that employment, the plaintiff may recover either in tort or in contract." [Emphasis mine.] The first reported English malpractice case was founded on contract. Slater v. Baker, 2 Wils.K.B. 359, 95 Eng.Rep. 860 (1767).

9 Seanor, supra note 4.

10 According to Professor Charles W. Wolfram of Cornell Law School, once the client-lawyer relationship is formed some of its contractual components are no longer subject to alteration by the parties; suits to enforce the lawyer's obligation may ordinarily be brought either ex contractu or ex delicto. RESTATEMENT (THIRD) OF THE LAW-THE LAW GOVERNING LAWYERS § 26 cmt. b, p. 89 (Tentative Draft No. 5, March 16, 1992).

11 The pertinent terms of Art. 5, § 46 , Okl. Const., are:

"The Legislature shall not . . . pass any . . . special law . . .
* * * * * *
Regulating the practice or . . . inquiry before the courts. . . ."

12 "Special laws are those which single out less than an entire class of similarly affected persons or things for different treatment." Reynolds v. Porter, Okl., 760 P.2d 816, 822 (1988). "[A] `[s]pecial law' is one that rests on a false or deficient classification. It creates preference and establishes inequity." Elam v. Workers' Compensation Court of State, Okl., 659 P.2d 938, 941 n. 8 (1983) (Opala, J., dissenting) (emphasis original).

13 For a full explanation that the "theories of the pleading mentality" has no place in the federal rules regime, see C. Wright and A. Miller, 5 FEDERAL PRACTICE AND PROCEDURE, § 1219 (2nd Ed. 1990). See also Gins v. Mauser Plumbing Supply Company, 148 F.2d 974, 976 (2nd Cir. 1945), where the court noted that particular legal theories advanced by a party, must yield to the court's duty to grant relief to which a party is entitled, whether demanded or not.

14 Howell, supra note 3 at 446-448; Chandler v. Denton, Okl., 741 P.2d 855, 862 n. 13 (1987); Doss Oil Royalty Co. v. Texas Co., 192 Okl. 359, 137 P.2d 934, 939 (1943).

15 Silver v. Slusher, Okl., 770 P.2d 878, 881 (1989); Doss, supra note 14 137 P.2d at 939.

16 Bradley Chevrolet, Inc. v. Goodson, Okl., 450 P.2d 500, 502 (1969); Vogel v. Rushing, 202 Okl. 277, 212 P.2d 665, 667 (1949).

17 Seanor, supra note 4.

18 For the view that in this century malpractice litigation has shifted to tort from the earlier contractual context of the physician/patient relationship because of "professional, social, and regulatory efforts to distinguish the provision of health care services from ordinary commercial transactions and to create an aura of professionalism untainted by crass commercialism," see G. Robinson, RETHINKING THE ALLOCATION OF MEDICAL MALPRACTICE RISKS BETWEEN PATIENTS AND PROVIDERS, 49 LAW AND CONTEMPORARY PROBLEMS. 173, 182 (1986). [Emphasis mine.]

19 The common law, also called the unwritten law, was known at its birth by the Latin name of lex non scripta regni Angliae or consuestudo Angliae. A body of non-statutory law of the kingdom of England and Wales, it originated from custom and judicial decisions. McCormack v. Oklahoma Pub. Co., Okl., 613 P.2d 737, 740 (1980).

20 The pleader's freedom to press all applicable theories or to choose among them leaves unaffected the basic differences in the substantive law governing tort and contract actions. For example, punitive damages are not recoverable upon a contract claim. Colby v. Daniels, 125 Okl. 202, 257 P. 298 (1927).

21 Howell, supra note 3 at 446-448; Chandler, supra note 14 at 862 n. 13.

22 The provisions of 12 O.S. 1991 § 2 are:

"The common law

SUMMERS, Justice, concurring specially.

¶1 The majority correctly holds that our current pleading code is sufficiently liberal [846 P.2d 1097] that plaintiff's petition is adequate to withstand a motion to dismiss. I write separately merely to emphasize that a plaintiff's counsel does not have a choice to proceed in contract or tort depending on the client's need to avoid a statute of limitations in a professional malpractice suit.

¶2 I would also, as does the majority, distinguish Funnell v. Jones, 737 P.2d 105, 107 (Okl. 1985) from today's case, but for a different reason. The court correctly notes that the Funnell opinion does not refer to allegations of contract. However, the appellate record in that case reveals that breach of contract was pleaded, and the contract statute of limitations was argued on appeal. Funnell is not applicable here, but only for the reason that it dealt with summary judgment rather than failure to state a claim. The majority's treatment of Funnell is not part of the holding, is of de minimis effect, and is likely cured by the court's explanation that a statute of limitations defense may be successfully raised in the context of summary judgment proceedings when the parties have identified with precision the exact nature of the duty that has allegedly been breached.

¶3 I continue to entertain the view expressed by us in Funnell and by the Oregon Court in Securities-Intermountain, Inc. v. Sunset Fuel Co., 289 Or. 243, 611 P.2d 1158, 1167 (1980), the latter case having been relied on by us in Flint Ridge Dev. v. Benham-Blair & Aff., 775 P.2d 797 (Okl. 1989). That view is that suits against physicians or attorneys, even though based on contracts of employment, are actions in tort, unless the parties have expressly spelled out an agreement which would commit the defendant to a certain action or result even in the absence of negligence. In other words, professional malpractice suits are controlled by the two-year tort limitation unless there is shown an express agreement by the defendant to do more than use ordinary care in the treatment or representation of the plaintiff. I believe the Court's opinion leaves that rule of law undisturbed.