dissenting.
I respectfully dissent on the basis of the two following theories.
First, I believe the majority has clearly erred in its analysis of the claim based on breach of contract. The Supreme Court’s opinion in Shideler v. Dwyer, (1981) Ind., 417 N.E.2d 281, does not address the contractual relationship between an attorney and his client. Rather, the court determined the substance of the plaintiff’s complaint sounded in attorney malpractice, which thereby negated its form as a breach of contract action. Such is not the case here.
In the instant action, Keystone (the plaintiff) clearly alleged Salin had made an express oral agreement to procure a bond issue and had failed to do so. We believe this situation aligns itself more closely with Whitehouse v. Quinn, (1982) Ind.App., 443 N.E.2d 332, trans. pending, where the foregoing would be treated as a breach of contract. In Whitehouse, this court was presented with a written attorney-client agreement. Judge Shields, speaking for the majority, said: “[A] claim predicated upon the nonperformance of an express promise contained in a written attorney-client contract is actionable in Indiana and is governed by the statute of limitation applicable to written contracts.” Id. at 337. Contrary to the majority’s assertion here, I do not believe the principle of Whitehouse can be confined to only written contracts but must be read as the condonation of actions based on express promises. And, “[a]n express contract is one whose terms are stated either orally or in writing.” Jackson v. Creek, (1911) 47 Ind.App. 541, 94 N.E. 416, 418 (emphasis added); A.J. Yawger & Co. v. Joseph, (1915) 184 Ind. 228, 108 N.E. 774. As Keystone’s claim is based on an oral promise, the six-year statute of limitations on unwritten contracts in IND.CODE 34-1-2-1 applies, making summary judgment based on a two-year limit unjustified.
I firmly believe the majority’s contrary ruling will be grossly injurious to a fundamental tenet of Indiana law:
“In some cases [the tort] ground of liability may coexist with a liability on contract towards the same person, and arising (as regards the breach) out of the same facts.”
Flint & Walling Mfg. Co. v. Beckett, (1906) 167 Ind. 491, 79 N.E. 503, 506; Shriner v. Union Federal Savings & Loan Ass’n., (1955) 126 Ind.App. 454, 125 N.E.2d 168, trans. denied. This principle has been particularly potent in recent actions upon contracts for personal services. See, e.g., Wilson v. Palmer, (1983) Ind.App., 452 N.E.2d 426 (title company); Essex v. Ryan, (1983) Ind.App., 446 N.E.2d 368 (surveyor). Our supreme court stated the rationale as follows:
“ ‘In every situation where a man undertakes to act or to pursue a particular course he is under an implied legal obligation or duty to act with reasonable care, to the end that the person or property of others may not be injured by any force which he sets in operation or by any agent for which he is responsible.’ ”
Flint & Walling Mfg. Co. v. Beckett, 79 N.E. at 506.
*753“Where the duty has its roots in contract, the undertaking to observe due care may be implied from the relationship, and should it be the fact that a breach of the agreement also constitutes such a failure to exercise care as amounts to a tort, the plaintiff may elect, as the common-law authorities have it, to sue in case or in assumpsit.”
Id. at 505. I do not perceive why attorney-client contracts should be treated differently than other service contracts in this respect and throw my allegiance to the reasoning of Whitehouse rather than the majority here. Granted, this could create greater liability for attorneys than for doctors, by virtue of the longer statute of limitations. However, until attorneys can obtain, as has the medical profession, a special two-year statute of limitations (see IND.CODE 16-9.5-3-1), they must continue to be governed by contract law as all other professions are. (This, of course, does not constrain an attorney from expressly limiting his contractual liability).
My conclusion does not intimate the actual existence of a contractual agreement or the terms thereof. All I have decided is that summary judgment is an inappropriate disposition for this case where Keystone has alleged the existence of a contract and its terms could affix the liability for the problems with the bond issue upon Salin. I find this result particularly compelling, especially in light of my second basis for reversal: Salin himself denies the existence of any attorney-client relationship whatsoever,* thus perhaps leaving the trial court with a simple contract for services as pleaded in Keystone’s amended complaint. The breach of such does not raise the problems involved with an attorney malpractice action such as asserted in the majority’s opinion. Salin himself has thereby presented a question of fact, and summary judgment is inappropriate. I would reverse and remand on this issue but agree with the majority opinion in all other respects.
It is fundamental that, in a summary judgment proceeding, the burden of establishing there is no genuine issue of material fact is upon the movant. Protective Ins. Co. v. Coca-Cola Bottling Co., (1981) Ind.App., 423 N.E.2d 656. Here, Salin had the burden, even under the majority’s reasoning, of showing that he had indeed been laboring under an attorney-client relationship and thereby had entered an attorney-client contract. On the contrary, the depositions in the record revealed a heated dispute as to such a relationship, with Salin himself insisting he merely worked for the Economic Development Commission but did not represent applicants thereto. Record, pp. 248, 256. We must assume he treated Keystone as just such an applicant, thereby negating any inference of an attorney-client relationship with Keystone. (To do otherwise could, of course, raise serious ethical questions about Salin’s employment as city attorney and his representation of private clients trying to obtain bond issues. This precise problem was placed before the court by newspaper items attached to an affidavit filed with Keystone’s response to Salin’s motion for summary judgment.) Thus, Salin has failed in his burden with regard to the factual issue of the existence of an attorney-client relationship.