Great Plains Federal Savings & Loan Ass'n v. Dabney

OPALA, Justice,

with whom KAUGER, Justice, joins, concurring.

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 *1094 report a recorded mortgage that should have been found in the course of a title search. The court holds today that the plaintiffs [S & L’s] petition 1 is sufficient to withstand a § 2012(B)(6) 2 motion to dismiss. Although I concur insofar as the opinion allows the pleader of a claim to invoke all the affordable theories and remedies, 3 I write separately to correct the misguided notion — which has crept into the stream of extant jurisprudence — that when the same facts give rise to a claim for breach of contract as well as to one in tort for professional malpractice, the plaintiff must proceed ex delicto unless he/she can prove that the defendant breached (in the course of a contract’s performance) an express promise to exercise greater than *1095 ordinary care. 4

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. 5 With the single exception of Sea-nor v. Browne, 6 we have imposed no requirement 7 that — absent a special promise apart from the implied undertaking to perform the contract in a workmanlike manner — an injured party must proceed exclusively in tort. 8 To follow Seanor’s 9 teaching in this legal malpractice case by restricting the S & L’s claim to the tort rubric would require that we withhold ex contractu redress from a class of litigants who are promisees of physicians, lawyers, 10 architects and other professionals sued for malpractice. These litigants would be denied the very remedy that is available against all other defendants who breach an effective promise-based obligation. An exclusion of malpractice claimants from ex contractu redress would clearly violate the procedural uniformity mandate of Art. 5, § 46, Okl.Const. 11 Our own jurisprudence, *1096 no' less than the Legislature’s enactments, must faithfully conform to the fundamental law’s prohibition against laws that are “special or local.” 12

*1095 “The Legislature shall not ... pass any ... special law ...

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Regulating the practice or ... inquiry before the courts....”

*1096 A plaintiff who states a claim and proves its facts 13 is entitled to any relief affordable by law; 14 the claimant need neither identify a theory of recovery nor set out the remedy to which he/she may be entitled. 15 At the submission stage, the court must charge the jury on all the theories of recovery the evidence may support. 16

CONCLUSION

I would today overrule Seanor 17 and excise from our case law the aberrational notion that suits in malpractice against professional defendants, which arise from an express or implied contractual duty, must be pressed exclusively in tort unless the parties have explicitly agreed upon a quality of performance different from that imposed or imposable by law. 18 The orthodoxy of the mainstream common law 19 doctrine would be restored by pronouncing that, where a duty of professional care arises from a contractual relationship, a party’s substandard performance is nonetheless actionable in a malpractice action 20 both in contract for the breach of a promise-based obligation and in tort for failure to exercise the degree of care that is due. 21 Extant jurisprudence in conflict with this notion constitutes an incorrect exposition of Oklahoma’s common law 22

. 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;

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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).

. 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:

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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. Frazier v. Bryan Memorial Hosp. Authority, Okl., 775 P.2d 281, 287 (1989). The Committee Comment to § 2012(B)(6) observes that a § 2012(B) motion "... replaces the code [of civil procedure] 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 the claim which would entitle him/her to relief." [Emphasis mine.]

.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.

. 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.

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

. Seanor, supra note 4 .

. 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 AmJur.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 CJ.S. Actions § 108 (1985), citing among others Commercial Ins. Co. of Newark v. Apgar, 111 NJ.Super. 108, 267 A.2d 559, 565 (1970). See also 61 AmJur.2d Physicians & Surgeons, Etc. § 311 (1985), citing among others Kuhn v. Brownfield, 34 W.Va. 252 , 12 S.E. 519, 521 (1890).

. 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 cáse was founded on contract. Slater v. Baker, 2 Wils.K.B. 359, 95 Eng.Rep. 860 (1767).

. Seanor, supra note 4 .

. 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).

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

. "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).

. 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.

. 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).

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

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

. Seanor, supra note 4 .

. 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.]

. The common law, also called the unwritten law, was known at its birth by the Latin name of lex non scripta regni Angliae or consuetudo 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).

. 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).

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

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

“The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma; but the rule of the common law, that statutes in derogation thereof, shall be strictly construed, shall not be applicable to any general statute of Oklahoma; but all such statutes shall be liberally construed to promote their object.” [Emphasis mine.]