dissenting.
Two of the items typically in focus when a motion for summary judgment is filed under ORCP 47 C are the relevant pleadings, which define potential issues for consideration, and the evidence in support of the pleadings. Unsurprisingly, this appeal hinges on two things: one, what plaintiff pleaded as the agreement between defendant attorney7 and his client, Dorothy DeBerry—plaintiff’s grandmother—and the professional duties defendant undertook on behalf of his client; and two, what evidence plaintiff adduced in support of her claims of breach of contract and professional negligence, as alleged in her amended complaint. In her complaint, plaintiff alleged an implied agreement between defendant and his client, an allegation the majority dismisses because of a statement in plaintiff’s reply brief. As a result, the majority’s analysis of the evidence that plaintiff used to oppose the summary judgment motion fails to fully address all of the allegations *170presented in the pleadings. I disagree that we should ignore the implied agreement that plaintiff alleged. I conclude that defendant failed to meet his burden of proof at the summary judgment stage, and I would reverse and remand a portion of both the negligence and contract claims for further proceedings.
I agree with the majority concerning the law that applies. As we recently explained in Frakes v. Nay, 254 Or App 236, 295 P3d 94 (2012), the Supreme Court’s decisions in Hale v. Groce, 304 Or 281, 744 P2d 1289 (1987), and Caba v. Barker, 341 Or 534, 145 P3d 174 (2006), require a plaintiff who is not a party to the contract between the attorney and testator to “prove (1) that the attorney actually made an express or implied promise to the testator (2) under circumstances that indicate that the testator intends to give the plaintiff the benefit of the promised performance” in order to “sustain a negligence claim for financial loss.” Frakes, 254 Or App at 267 (emphasis added). As the Supreme Court explained in Hale, a lawyer’s failure to perform an agreement to “undertake to make a particular disposition by means specified by the client (for instance, in trust, or by a gift of identified property), or to accomplish the intended gift by specified means of the lawyer’s choosing,” regardless of negligence, “would be a breach of contract.” 304 Or at 286. I agree with the majority that the Supreme Court’s decision in Caba allows a nonclient to assert claims for breach of contract and negligence against an attorney on the basis of an implied promise that is factually or legally supportable. 255 Or App at 161; see Caba, 341 Or at 540. Thus, I also agree with the majority that “Hale and Caba stand for the proposition that an essential element of a breach of contract or negligence claim by a nonclient plaintiff against an attorney who prepared a testamentary instrument is the existence of a promise by the attorney—either express or implied—to include specific provisions to satisfy certain objectives of the client for the benefit of the plaintiff.” 255 Or App at 161.8
*171I do disagree, however, with the application of the law to the facts of this case. In paragraph 9 of the complaint, plaintiff alleged that the agreement between defendant and her grandmother as follows:
“[1] The Lawyer agreed and contracted with his client, the Grandmother, which also created a duty to her Granddaughter as the intended beneficiary, to prepare the Trust and Will so the Granddaughter would receive the home and any replacement home Grandmother intended her Granddaughter to receive upon her death. [2] The Lawyer also agreed he would use his best professional efforts to prepare Grandmother’s Trust and Will so the Granddaughter would receive the home or any replacement home. [3] The Lawyer assumed the duty of insuring the documents he prepared would give the home or a replacement home to the Granddaughter to achieve that result upon her death. The Lawyer’s duties extended to the Granddaughter as an intended beneficiary.”
Through paragraph 9, plaintiff alleged a series of promises by or duties of defendant.
First, plaintiff alleged that defendant agreed to prepare his client’s trust and will so that plaintiff would receive the Canyon Court home and any replacement home, which his client intended for plaintiff to receive upon her death. In doing so, plaintiff alleged an express agreement by defendant. Paragraph 9 of plaintiff’s complaint does not state that defendant’s client had agreed with defendant that he would place a specific provision in the trust (or her will), a focus of defendant’s argument in the trial court and on appeal. Rather, plaintiff alleges that defendant and his client agreed that he would prepare her trust and will so that he would achieve a particular result for his client, namely, that plaintiff would receive the Canyon Court home and any replacement home.
Second, plaintiff alleged that defendant agreed that, in preparing the will and trust, “he would use his best professional efforts” to accomplish his client’s desired result, namely, plaintiff “would receive the home or any replacement home.” A breach of that kind of promise incorporates *172by reference, or by implication, a general standard of skill and care to which the defendant would be bound independent of the contract, see Hale, 304 Or at 287 (“[T]he lawyer’s promise might be to use his best professional efforts to accomplish the specified result with the skill and care customary among lawyers in the relevant community.”), and would be an actionable professional negligence claim if brought by the client. See id. (noting that sort of promise— to use skill and care customary in the community—“arises only from the professional obligation to the client” and, therefore, “does not threaten to divide a lawyer’s loyalty” between the client and a third party); accord Caba, 341 Or at 541 n 3 (explaining that the plaintiffs, residual legatees who were not parties to the attorney’s contract with the testator, “would not be able to sustain their claims under the more general, professional negligence standard”). If that were the only allegation, then the trial court would have been required to enter a judgment dismissing plaintiff’s claim. See Frakes, 254 Or App at 267 (“Standing alone, an attorney’s promise to the testator to use the skill and care customary among lawyers in the relevant community is not a promise to obtain a particular result for the plaintiff’s benefit that will support a third-party negligence claim for financial loss.”).
Third, plaintiff alleged that defendant assumed a duty to his client of “insuring the documents he prepared would give the home or a replacement home to [plaintiff] to achieve that result upon [his client’s] death.” Thus, the alleged duty is similar to the alleged express promise defendant made to his client.
In paragraph 10 of the complaint, plaintiff alleged that defendant breached the agreement with his client and breached his obligation to plaintiff as the intended beneficiary in a number of specific ways. Plaintiff alleged that defendant “did not include a simple phrase” in the trust or will “that would provide any replacement home bought by Grandmother for the Canyon Court home for her granddaughter would also go to her Granddaughter”; did not advise his client that if she sold the Canyon Court home to buy a replacement home for plaintiff, the trust or will would *173need to be amended to describe the new home; “did not keep in contact with the Grandmother, particularly given her age and lack of knowledge about these legal matters, to learn Grandmother had purchased a replacement home,” which would have led defendant to change the trust or will; and “did not reasonably advise and monitor the Grandmother’s personal or Trust assets to insure the Trust received” her assets and to “provide for correct administration of the Trust.” In paragraph 13 of the complaint, plaintiff similarly specified that defendant was negligent and breached his duties to his client and to plaintiff as a third-party beneficiary.
The breaches specified in paragraphs 10 and 13 of the complaint can only be understood as breaches of implied promises by defendant to plaintiff. Even though plaintiff stated in her reply brief that she did not “plead an implied promise,” plaintiff does not allege that defendant expressly promised his client to do any of the things she alleges constituted breaches of the attorney-client agreement in paragraphs 10 and 13.
Plaintiff’s arguments are consistent with that view of the complaint. Plaintiff argued in the trial court, as she does in this court, that the defense has an “unreasonably narrow view” that, unless there was evidence of an express agreement in which defendant’s client said that she wanted the Canyon Court house to go to plaintiff and, if she ever sold it, she wanted replacement homes to go to plaintiff, there was no claim. In the trial court, plaintiff argued that defendant had failed to address “the four specifications” in paragraph 10 of the complaint when it came to her expert opinion affidavit under ORCP 47 E, which established a need for trial. Plaintiff further argued below that an attorney who is directed to give a gift to a beneficiary does not simply agree to do that and that there was no evidence that the contract “did not include the things we have referred to as being part of the obligation.”
When considering whether defendant met his burden to establish that there are no genuine issues of material fact for trial, the majority appears to have accepted defendant’s argument that plaintiff only alleged an express agreement between defendant and his client in paragraph 9 of the *174complaint. In its description of the facts, the majority states that the “alleged contractual promise was that defendant would include a provision in [his client’s] revocable trust or will that would achieve [his client’s] objective to distribute to plaintiff the Canyon Court home or any home purchased by [his client] to replace the Canyon Court home.” 255 Or App at 156 (emphasis omitted). The majority does not analyze whether plaintiff is entitled to a trial on her allegations of an implied agreement. Considering all of the allegations in the complaint, plaintiff’s arguments on the merits, the affidavit of plaintiff’s counsel under ORCP 47 E that she has a retained expert who will testify at trial on disputed issues, and the applicable law, I conclude that plaintiff has a right to a trial on portions of her claims for negligence and breach of contract.
The majority concludes that plaintiff’s expert could not possibly testify concerning an agreement between defendant and his client “that he would include a provision in the trust ensuring that plaintiff would receive the Canyon Court home or any replacement home,” 255 Or App at 162 (emphasis in original), because plaintiff does not assert that her expert “has personal knowledge that defendant made such an agreement” with his client, id. at 163. The majority’s conclusion rests on the assumption that a single express promise is at issue in the case. Because I disagree with that premise, and because plaintiff contends that, in addition to her evidence of her grandmother’s intent, her expert will provide a basis for the jury to conclude that defendant impliedly promised to include “a simple phrase” in the trust or will that would provide that a replacement home bought by his client for the Canyon Court home would go to plaintiff—a promise, implied in fact, to include a provision in the trust or will that would accomplish the client’s objective—I would permit a trial on that specification of plaintiff’s breach of contract and negligence claims. Accordingly, I respectfully dissent.
References to defendant include references to his law firm, Steven R. Summers, P.C., also a defendant.
I do not understand the majority's holding to be in conflict with our holding in Frakes. That is, it is possible for a nonclient plaintiff to have a claim against an attorney who “impliedly promised to obtain a particular result” through estate planning for the client by breaching the implied agreement with the client or by negligently failing to perform the promise to the client. Thus, for example, an *171expert might testify concerning promises that an attorney impliedly makes to a client in particular circumstances.