author: WATT, Vice Chief Justice. BOUDREAU, J.,

text:
    2002 OK 45
    Michael C. WASHINGTON, Plaintiff-Appellant, v. Robert BARRY, Royce Melton, Capt. Sockey, Billy Pogue, Marion Bess, Sgt. Mcmurtrey, Sgt. Williams, Sgt. Gardner, Cpl. Dodd, Cpl. Welch, Cpl. Workman, and Col. Brittingham, Defendants-Appellees.
    No. 95,162.
    Supreme Court of Oklahoma.
    May 28, 2002.
    Rehearing Denied Sept. 24, 2002.

      Michael C. Washington, Plaintiff-Appellant, pro se.
    W.A. Drew Edmondson, Attorney General and Barbara C. Stoner, Deputy Attorney General, for the State of Oklahoma.
   OPINION

WATT, Vice Chief Justice.

FACTS AND PROCEDURAL BACKGROUND

{ 1 The only recitation of facts in the ree-ord comes from plaintiffs verified petition and other filings because the trial court dismissed plaintiff's petition on the State's motion. Consequently, the facts set out in this opinion come exclusively from plaintiffs petition and other filings.

T2 On February 9, 2000, plaintiff was incarcerated in a cell in the Disciplinary Segregation Unit of the Oklahoma State Penitentiary at McAlester. He objected to prison authorities putting another inmate in his cell, saying, "Plaintiff did decline the invitation, saying that he would not take a cell partner while housed on the disciplinary segregation unit." Plaintiff alleged that he "had a fundamental right to a single cell while on the Disciplinary Segregation Unit," but did not further explain why he claimed such a right. Plaintiff also alleged that he had a "fundamental [right] to privacy and to be let alone." Consequently, prison authorities placed plaintiff in handcuffs and leg irons in order to accomplish putting the other prisoner in the cell, which they did "the following evening," apparently without incident. Later, however, plaintiff "refused to give up the handcuffs and leg restraints" and "was allowed to sleep in the restraints over night." The next day, February 11, a guard captain, one of the defendants, assembled the "Corrections Emergency Response Team" to forcibly remove the restraints, which plaintiff had refused to give up voluntarily. Plaintiff also alleged that the altercation that occurred when the Emergency Response Team removed plaintiff's restraints was videotaped by a prison employee.

T3 Plaintiff alleged that he was checked after the altercation by "a nurse on the scene" who found that he "had a cut over his right eye and that the eye was swelled and red." Plaintiff also alleged that he was knocked unconscious during the altercation but regained consciousness while it was still going on. He also claims to suffer from dizziness, severe back and neck pain, and blurred vision in his right eye. Plaintiff, however, does not allege that he either sought or required medical attention after the event.

ISSUE
" 4 Did the plaintiff's petition state a cause of action for damages for the use of "excessive force" by the defendants?

We answer the question "no."

DISCUSSION

T5 The Court of Civil Appeals's opinion decided only that the trial court had properly dismissed plaintiff's petition because of plaintiff's admission that he had failed to comply with the requirements of the Governmental Tort Claims Act. Although we agree with the result reached by the trial court and Court of Civil Appeals, we have granted certiorari here in order to resolve a first impression issue, which neither the trial court nor the Court of Civil Appeals addressed: what showing must a prisoner in a penal institution make in order to state a cause of action for the use of "excessive force" against his person by prison employees when the prisoner and those employees have come into conflict? '

I. Plaintiff has no cause of action under the Governmental Tort Claims Act.

16 Plaintiffs petition sought damages for assault and battery and intentional infliction of mental anguish and emotional distress arising from the negligent acts of defendants, not just their intentional acts. Plaintiff made no attempt in his petition to distinguish between negligence and intentional misconduct. Plaintiff made clear in his reply to the Attorney General's response to the petition for certiorari that he was claiming that the defendants were acting within the scope of their employment:

The Governmental Tort Claims Act ("GOVERNMENTAL TORT CLAIMS ACT") was not designed to provide a blanket protection and a safe haven to intentional or negligent correctional officers for wrongs committed within the seope of their employment.

[Emphasis added.] Plaintiffs conclusion on this score is fundamentally wrong because § 152.1(A) the Governmental Tort Claims Act immunizes not only the state and its subdivisions but also "all of their employees acting within the seope of their employment." Further, the foregoing quote from plaintiffs petition demonstrates plaintiff's concession that the individual defendants were acting within the seope of their employment.

T7 In his petition for certiorari, Plaintiff frankly admits that he did not sue the state because the Governmental Tort Claims Act, 51 0.8.2001 $ 155(24), expressly immunizes the state and its subdivisions from liability arising out of the "Provision, equipping, operation or maintenance of any prison...." Thus, he concedes that he has no cause of action against the state. But Plaintiff ignores the fact that § 152.1(A) of the Governmental Tort Claims Act immunizes not only the state and its subdivisions but also "all of their employees acting within the scope of their employment." "Scope of employment" is defined, in § 152(9), to mean "performance by an employee acting in good faith within the duties of the employee's office or émployment or of tasks lawfully assigned by a competent authority...." With exeeptions not applicable here, § 163(C) provides that employees may not be joined as defendants for their actions that are within the scope of their employment. We discussed these statutes in Carswell v. Oklahoma State University, 1999 OK 102 ¶ 17, 995 P.2d 1118, 1128.

T8 The statutes and cases discussed above reveal that plaintiff may not avoid the immunities granted by and the requirements of the Governmental Tort Claims Act by simply declining to join the state as a party, although he claims the prison employee defendants were acting within the seope of their employment. The prison employee defendants are expressly immunized from liability while acting within the seope of their employment. Here, although plaintiff conceded that defendants were acting within the seope of their employment, he nevertheless seeks to impose liability against them despite their immunity from liability under $ 152.1(A) of the Act. Our analysis leads us to the ineseapable conclusion that the Act immunizes defendants from liability for the acts complained of by plaintiff just as it does the state itself for negligent acts.

II. Plaintiff had a potential cause of action for the excessive use of force by the defendant prison employees but failed to state an actionable claim in his petition.

19 Plaintiff seeks to impose liability for the defendants' use of "excessive force." We have not heretofore examined the issue of what showing must be made by a prisoner in a penal institution under cireumstances, such as those in the case at bar, where force has been applied to maintain discipline. We first observe that our analysis in such cases must differ significantly from the analysis we have applied in determining what was "excessive force" in cases involving police officers making arrests and those involving nursing home employees dealing with patients. See, for example, Nail v. City of Henryetta, 1996 OK 12 ¶11, 911 P.2d 914, 917 and Rodebush v. Oklahoma Nursing Homes, Ltd., 1993 OK 160 112, 867 P.2d 1241, 1245 (Okla.1993). The U.S. Supreme Court dealt with these distinctions in Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 448 (1989), holding that plaintiffs who are not prisoners have significantly broader rights arising from the application of force by police officers making arrests than do those who are incarcerated.

110 A prisoner in a penal institution has no right to recover for the use of excessive force by prison employees unless the force applied was so excessive that it violated the prisoner's right to be protected from the infliction of "cruel or unusual punishments" under the state and federal constitutions. Ok. Const., Art. 2 § 9; U.S. Const., 8th Amd. Thus, a prisoner has a significantly greater burden to bear in establishing his right to a cause of action than does a person who is not incarcerated. Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251. Whitley was different on its facts from the case at bar in that it involved the quelling of a prison riot resulting in the plaintiff-prisoner being shot. It's analysis, however, is determinative of this appeal.

«11 In Whitley, 475 U.S. at 320-321, 106 S.Ct. at 1085, the court spelled out what is required to make actionable the conduct of prison officials when a prisoner resists the maintenance of order, as plaintiff did when he first resisted the placement of another prisoner in his cell and then resisted the removal of his restraints:

Where a prison security measure is undertaken to resolve a disturbance, such as occurred in this case, that indisputably poses significant risks to the safety of inmates and prison staff, we think the question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm." [Citation omitted.]

The court also observed. "such factors as the need for the application of force, the relationship between the need and the amount of force that was used, and the extent of injury inflicted should be considered in making the determination whether the prison officials' conduct was done maliciously and sadistically." [Emphasis added, internal quotation marks omitted.]

T12 The Whitley court recognized that in a prison there is an "ever present potential for violent confrontation and conflagration" so that when that potential

ripens into actual [emphasis as in the original] unrest and conflict ... Prison administrators should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.... That deference extends to a prison security measure taken in response to an actual confrontation with riotous inmates, just as it does to prophylactic or preventive measures intended to reduce the incidence of these or any other breaches of prison discipline. It does not insulate from review actions taken in bad faith and for no legitimate purpose, but it requires that neither judge nor jury freely substitute their judgment for that of officials who have made a considered choice. Accordingly, in ruling on a motion for a directed verdict in a case such as this, courts must determine whether the evidence goes beyond a mere dispute over the reasonableness of a particular use of force or the existence of arguably superior alternatives. Unless it appears that the evidence, viewed in the light most favorable to the plaintiff, will support a reliable inference of wantonmness in the infliction of pain under the standard we have described, the case should not go to the jury.

[Emphasis added.]

113 Plaintiffs petition reveals that the Correctional Emergency Response Team waited thirty-six hours before undertaking to remove the restraints that plaintiff had refused to allow to be removed peaceably. These officials videotaped the incident and had a nurse "on the scene." Plaintiffs petition also establishes that plaintiff did not seek, and apparently did not need, medical attention after the nurse on the seene treated him for a cut over his eye. Considering the factors designated in Whitley, "the need for the application of force, the relationship between the need and the amount of force that was used, and the extent of injury inflicted," it is clear that there has been no showing of "wantonness in the infliction of pain." We must defer to prison officials when they quell a conflict of this sort because the law "requires that neither judge nor jury freely substitute their judgment for that of officials who have made a considered choice." Whitley, 475 U.S. at 320-321, 106 S.Ct. at 1085.

114 "A complaint 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" Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). Based on the Conley test it is clear that plaintiff can prove no set of facts that would entitle him to relief. Plaintiff's petition shows that the injuries he suffered arose because of his refusal to comply with prison discipline. As noted in Whitley, we should not "freely substitute our judgment for that of officials" who have been forced to act because of the indiscipline of the prisoner-plaintiff. Plaintiffs petition also shows that the relatively minor injuries he sustained were inflicted by the prison's Emergency Response Team while it was being videotaped and in the presence of a nurse. Thus, plaintiffs allegations simply will not support the inference of "wantonness in the infliction of pain," which Whitley requires before a cause of action will be held to exist. Instead, plaintiff's petition clearly reflects that foree was applied by the Emer-geney Response Team's "in a good faith effort to maintain or restore discipline," which finding, under Whitley " insulates prison officials from liability. Plaintiff's pleading simply will not support the necessary showing of wilfulness and wantonness, which is necessary to impose personal liability against the individual prison employees who plaintiff has sued. Thus, we find that remanding this matter to the trial court under the state of this record would serve no useful purpose.

1 15 Our conclusion that plaintiff has failed to state a cause of action echos results reached in several federal cases. In LaShpella v. C.E.R.T. Team, 989 F.2d 505 (Table, Unpub.Dispo.), 1993 WL 87000 (8th Cir.) the court affirmed the trial court's dismissal of a prison inmate plaintiffs suit alleging that he had been injured as the result of the application of excessive force by an Iowa prison's Correctional Emergency Response Team. The court held:

... The extent of the injury inflicted is not dispositive, but is only a relevant factor to be considered among the other factors: the need for foree; the relationship between the need and the amount of force defendants used; the threat reasonably perceived by responsible officials; and efforts made to temper the severity of a forceful response. Id. (discussing Whitley ). The district court carefully considered each of these factors in its analysis and specifically found that the force was applied in a good faith effort to restore order. Therefore, the district court concluded that appellants had failed to establish an Eighth Amendment claim. We review the factual findings of the district court for clear error only. Burgin v. Iowa Dep't of Corrections, 928 F.2d 637, 639 (8th Cir.1991) (citing Fed.R.Civ.P. 52(a)). We agree with the district court's findings and find no clear error. Nor do we find any error of law in the district judge's analysis. Accordingly, we affirm the district court.

T16 In Jackson v. Carl, 974 F.2d 1342 (Table, Unpub.Dispo.), 1992 WL 212168 (9th Cir.), the court noted, "not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights." Quoting with approval, Meredith v. Arizona, 523 F.2d 481, 483 (9th Cir.1975). In Jackson, the prisoner repeatedly refused to relinquish a foil coffee packet to prison officials, which necessitated the assembly of a "cell extraction team" to take it from him. In the melee the prisoner was shot with a taser gun. The prisoner was then treated "for bruises across his shoulder blades and a small cut behind his left ear." The court observed that the prisoner's "refusal to comply with defendant's orders posed a threat to prison discipline and security" so that the use of a taser gun was reasonable and had been used in good faith.

[ 17 In Bennett v. Cambra, 1997 WL 88329 (U.S.D.C.N.D.Cal.) the court held that the use of pepper spray by the members of a "cell extraction team" was reasonable because the team's acts had been necessitated by the plaintiff prisoner's repeated refusal to return a steel food tray from his cell. In so holding the court said, "Plaintiff created a disturbance and security risk by refusing to return his tray and force was used [only] after defendants repeatedly requested that plaintiff return the tray voluntarily."

1 18 Here, by contrast to both Jackson and Bennett, the Emergency Response Team used neither tasers nor pepper spray to subdue plaintiff, despite plaintiff's pattern over the previous thirty-six hours of first refusing to peaceably accept a cell mate and then refusing to allow his restraints to be removed. Plaintiff's petition makes no allegation that would support a finding of wantonness under the cireumstances present here, cireumstances in which plaintiff admits that the conflict arose because of his refusal to submit to prison discipline and that the forceful response of the defendants' was carefully considered, reasonable, and necessary, given plaintiff's uncooperativeness. Further, the injuries to plaintiff were minimal, despite his resistence. We hold, therefore, that plaintiff's petition failed to state a cause of action for the use of excessive force against him by the defendant prison employees.

CERTIORARI PREVIOUSLY GRANTED, COURT OF CIVIL APPEALS OPINION VACATED, ORDER GRANTING DEFENDANTS MOTION TO DISMISS AFFIRMED.

WATT, V.C.J., HODGES, OPALA, KAUGER, and WINCHESTER, JJ., concur.

SUMMERS, J., concurs in part, dissents in part.

HARGRAVE, C.J., dissents:

"I would not grant certiorari."

LAVENDER and BOUDREAU, JJ., dissent.

BOUDREAU, J.,

with whom LAVENDER, J., joins dissenting.

1 I respectfully dissent. I agree that the need to preserve internal order and discipline and to maintain institutional security necessitates an enhanced showing by a prisoner who seeks to recover damages for the use of excessive foree. I dissent because the majority opinion deprives plaintiff of any semblance of procedural due process.

2 Plaintiff is a state prisoner. He sued twelve prison guards seeking to hold them personally liable for their alleged use of excessive force. The guards moved to dismiss based on a variety of grounds. The trial court summarily dismissed the petition one day after the defendants filed their motion, without allowing plaintiff an opportunity to respond to the guards' motion and without a hearing. The trial court subsequently denied plaintiff's motion for rehearing/motion for new trial. The Court of Civil Appeals affirmed. Plaintiff sought certiorari.

13 In his petition for certiorari, plaintiff asks that he be allowed to respond to the individual defendants' motion to dismiss. He contends the trial court and the Court of Civil Appeals misapprehended the nature of his claim. He points out that he is suing the guards individually for their alleged use of excessive force occurring outside the scope of their employment. He emphasizes that he is not suing the state and therefore the Oklahoma Governmental Tort Claims Act is not applicable.

14 We accepted certiorari. The majority opinion acknowledges that plaintiff has a potential claim for the use of excessive force by the individual defendants. Nevertheless, the majority concludes that plaintiff failed to state a claim for excessive force because he did not allege sufficient facts in his petition. The majority reaches this conclusion despite the fact defendants had not filed a motion to dismiss on that basis (1.e., for failure to state a claim).

T5 I cannot accede to the majority opinion's conclusion for two reasons. First, the trial court deprived plaintiff of an opportunity to respond to defendants' motion to dismiss. This court has emphatically stated that a party is entitled to respond to a motion to dismiss unless all of the claims appear to be frivolous or without merit on their face. Washington v. State, 1996 OK 189, 915 P.2d 859. Here, there is no suggestion in the majority opinion that plaintiff's claim for excessive force is frivolous or without merit. On the contrary, the majority opinion actually identifies plaintiff's claim as raising a first impression issue in Oklahoma. Under Washington, supra, we should reverse the trial court and remand with directions to allow plaintiff to respond to the defendants' motion to dismiss.

T6 Second, the majority opinion's analysis is a throwback to pre-1984 pleading under which cases were disposed of on the basis of claims and defenses revealed in the pleadings. With the adoption of the Oklahoma Pleading Code in 1984, Oklahoma became a notice pleading state. 12 0.8.2001 § 2008(a)(1). Notice pleading narrows the function of the petition to that of giving "fair notice of the plaintiff's claim and the grounds upon which it rests." Delbrel v. Doenges Bros. Ford, Inc., 1996 OK 36, 913 P.2d 1318, 1320. In this case, plaintiff's petition undeniably gave the majority sufficient notice to identify plaintiff's claim as one for excessive force; surely, then, the petition likewise gave sufficient notice to defendants.

17 Having given sufficient notice in his petition, plaintiff is entitled to have his claim proceed on the merits. If the claim is without foundation, this failing should be revealed early in the course of the proceedings. In rejecting the practice of deciding cases on the pleadings, the Committee Comment to § 2008 points out that "modern devices such as discovery, pre-trial conferences and summary judgments are more effective methods of performing the function of disclosing the factual and legal issues in dispute ... and disposing of frivolous or unfounded claims. ..." 12 0.8.2001 § 2008.

T8 Finally, the majority opinion cites four federal court cases to support its conclusion that plaintiff's petition fails to state a claim. However, all four of the cases determined that the prisoners' claims were without foundation during the normal course of the trial process, not on the pleadings alone. See LaShpella v. C.E.R.T. Team, 989 F.2d 505, 1993 WL 87000 (8th Cir.1993) (unpublished decision) (findings of fact and conclusions of law after non-jury trial); Jackson v. Carl, 974 F.2d 1342, 1992 WL 212168 (Oth Cir.1992) (unpublished decision) (summary judgment); Bennett v. Cambra, 1997 WL 88829 (N.D.Cal.1997) (unpublished decision) (summary judgment); Whitley v. Albers, 475 U.S. 312, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986) (directed verdict).

19 In sum, we should reverse the trial court's judgment and remand with directions to allow plaintiff to respond to defendants' motion to dismiss.

      . Our research reveals that many, if not most, prisons have emergency response teams (sometimes called "cell extraction teams") and that they routinely videotape their actions in subduing unruly prisoners and have a nurse on the scene to immediately render any medical aid that may be required. LaShpella v. C.E.R.T. Team, 989 F.2d 505 (Table, Unpub.Dispo.), 1993 WL 87000 (8th Cir.); Bennett v. Cambra, 1997 WL 88329 (U.S.D.C.N.D.Cal.1997); Jackson v. Carl, 974 F.2d 1342 (Table, Unpub.Dispo.), 1992 WL 212168 (9th Cir.).

      . Foil was contraband in the prison because it could be used in conjunction with household items to assemble deadly weapons.

      . Although exhaustion of administrative remedies is not an issue in this appeal, we think it important to observe that federal law prohibits prisoners from maintaining suits claiming the use of excessive force against them by prison officials "until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a) (1994 ed., Supp. V). The United States Supreme Court recently construed § 1997e(a) in a case very similar to the case at bar. In Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002), the court held that a prisoner who had sued prison officials individually under 42 U.S.C. § 1983 for having violated his constitutional rights by the use of excessive force against him could not prevail because he had failed to first exhaust his administrative remedies under § 1997e(a).

      . In reviewing a dismissal motion we must take all of plaintiff's allegations as true. Patel v. OMH Medical Center, Inc., 1999 OK 33, 987 P.2d 1185, 1202. Plaintiff's allegations include the following. Officer Pogue approached plaintiff's cell and told him to "cuff up" because Pogue was going to put another inmate in the cell. Plaintiff refused, saying he would not take a cell partner while he was in the Disciplinary Segregation Unit. The next evening the Emergency Response Team placed another inmate in plaintiff's cell. Plaintiff refused to "give up the handcuffs and leg restraints" that had been placed on him. He was "allowed to sleep in the restraints overnight." The next evening eight members of the Emergency Response Team went into plaintiff's cell and "forcefully" removed his restraints. Plaintiff was sitting on the floor when the first officer entered the cell and told him to "lay down on the floor." The officer then "came down on plaintiff with his full weight, causing plaintiff's head to crash onto the floor rendering plaintiff temporarily unconscious." Plaintiff regained consciousness after a series of blows to his face and head. Another officer had his knee on the back of plaintiff's neck, striking him in the head, and the officers "continued to punch plaintiff for some time" until Officer Sockey yelled: "Alright. That's enough, put him on the bunk." The officers removed plaintiff's restraints. A nurse on the scene found plaintiff had "a cut over his right eye ... and the eye was swelled and red." As a result of the officers' conduct, plaintiff has bouts of dizziness, severe neck and back pain and blurred vision in his right eye.

      . -When we adopted the Oklahoma Pleading Code we expressly declined to adopt Rule 12(c) of the Federal Rules of Civil Procedure which allows for judgment on the pleadings. The Committee Comment to § 2012 notes that Rule 12(c) "is little more than a relic of the common law and code eras. Its preservation in the original federal rules undoubtedly was due to the undeveloped character of the summary judgment procedure and the uncertain scope of the Rule 12(b)(6) motion [to dismiss]. Neither of these rationales [is] relevant today." 12 0.$.2001 § 2012.


source: Caselaw Access Project

license: Public Domain

text:
    2002 OK 65
    Terry Lynn NICHOLS, Defendant/Petitioner, v. The Honorable Niles L. JACKSON, Presiding Administrative Judge, District Court of Oklahoma County, Respondent.
    No. 96,609.
    Supreme Court of Oklahoma.
    June 27, 2002.
   ORDER

T1 On consideration of the defendant/petitioner's, Terry Lynn Nichols (Nichols), application and petition to assume original jurisdiction and to issue a writ of mandamus and his subsequently filed motion to continue to seal the record and/or to selectively seal portions of the record and the responses thereto, THE COURT DETERMINES:

1)The Court Fund of Oklahoma County (Court Fund) consists of fees, fines and forfeitures collected by the Court Clerk of Oklahoma County. The Court Fund is to be utilized in defraying the expenses of holding court. Title 20 0.98.2001 $ 1801.
2)Collections deposited in the Court Fund have generally been derived from the following activity sources: civil-8.3%; divorce-8%; felony-20%; juvenile-1.6%; licenses (marriage & bingo)-4.7%; miscellaneous-8%; misdemeanor-15%; small claims-83%; probate & adoption-.6%; traffiec-48.9%.
3)Claims against the Court Fund are limited to expenses lawfully incurred for the operation of court and include attorney's fees for indigents in the trial court and on appeal. Payment of such expenses may be made only following approval by the district judge who is a member of the governing board of the court fund and either the local court clerk or the local associate district judge who is a member of the governing board. Title 20 0.8.2001 §§ 1802 and 1804.
4)When a conflict of interest arises between a defendant and the public defender, the case may be reassigned by the court to another county indigent defender, an attorney who represents indigents pursuant to contract, or a private attorney who has agreed to accept such appointments. Title 19 ©.8.2001 $ 188.7.
5)In September of 1999, members of the Court Fund Board and the Court Clerk of Oklahoma County executed a Memorandum of Understanding relating to the projected expenditures associated with the defense costs in the Nichols' cause. The Memorandum of Understanding was not executed by either the Administrative Director of the Courts or by the Chief Justice of the Oklahoma Supreme Court.
6)O0n September 28, 1999, Robert A. Ravitz (Ravitz/Public Defender), with the authority of the Court Fund Board "through practice and procedure," contracted with Brian T. Hermanson (Hermanson) to represent Nichols as a conflict defense attorney.
T)No constitutional, statutory or other authority exists for the Public Defender, who has been excused from representation because of a conflict of interest, to contract on behalf of the Court Fund Board with a conflict defense attorney, the assignment of which is left to the appointing court. Title 19 0.8.2001 § 188.7.
8)Persons dealing with public officers are bound to know the extent of their authority. State ex rel. Comm'rs of Land Office v. Frame, 1948 OK 240, 115, 199 P.2d 215. Contracts of public officials entered without constitutional, statutory or other authority are void. See, Bannister v. Farmers Alliance Mutual Ins. Co., 1981 OK 67, 17, 630 P.2d 1279; State ex rel. Comm'rs of Land Office v. Frame, supra; Lingo-Leeper Lumber Co. v. Carter, 1932 OK 735, ¶ 0, 17 P.2d 365.
9)The contract entered between the Public Defender and Hermanson is void.
10)Hermanson, as Nichol's counsel, is entitled to a reasonable fee consistent with the teachings of State v. Lynch, 1990 OK 82, 796 P.2d 1150. Based on the finding of the presiding judge and the facts herein, we also find the fees and expenses heretofore paid to Her-manson to be reasonable and are approved per quantum meruit. The same standards should be applicable for a determination in the computation of any future fees.
11)There is a presumption of openness in criminal proceedings. Press-Enterprise Co. v. Superior Court of California for Riverside County, 478 U.S. 1, 106 S.Ct. 2735, 2740, 92 L.Ed.2d 1 (1986).
12)In recognition of the expressed public policy supporting the electorate's right to be fully informed, the Oklahoma Legislature enacted the Oklahoma Open Records Act (Open Records Act), 51 0.S.2001 § MAIL et seq. See specifically, 51 0.8.2001 § 24A.2. Although the definition of "public body" contained within the Open Records Act does not encompass judges or Justices generally, the Act's definition of "records" does include documents filed of record in court proceedings. Title 51 O.S. 2001 § 24A.3(1) and (2). Nichols v. Jackson, 2001 OK CR 35, ¶ 9, 38 P.3d 228.
13)On September 20, 2001, pursuant to powers conferred by the Okla. Const. Art. 7, § 4, the Court certified the question of whether Nichols request to withhold records from the public purview should be upheld. The Court of Criminal Appeals answered the question certified determining that carte blanche closure of fee records or the sealing of all records filed with this Court is unnecessary to protect Nichols' constitutional right to a fair trial. Nichols v. Jackson, supra at ¶¶ 21-22, supra.
14)In consideration of the constitutional rights of the criminal defendant, the answer certified by the Court of Criminal Appeals in Nichols, supra, the general right of the public to know recognized by the Open Records Act, the acknowledgment that records of money budgeted for and paid in Nichols' defense have been a matter of public record since the date of the first payment in October of 1999, records relating to fees and expenditures of Nichols' defense should be selectively sealed.
15)Nichols has requested and the respondent does not object to the sealing of the following specific documents: a) paragraphs 12g and 12h of the Findings of Fact, Conclusions of Law and Orders Made in the Denial of the Request of Brian H. Her-manson for Additional Attorney's Fees filed on June 6, 2001, and any other documents describing the contents of those paragraphs, including attachments to the Findings of Fact, listing overhead expenses and overhead equipment, App. 25-30; b) paragraphs 17, 25, 26, 32, 44 and 45 of Brian T. Her-manson's Affidavit of July 24, 2001, which is Exhibit 3 in Nichols' Appendix, and begins on p. 61 of the Appendix; c) paragraph 28 of Rodney Uphoff's Affidavit of July 12, 2001, which is Exhibit 5 of Nichols' Appendix and begins on p. 97 of the Appendix; d) paragraphs 9, 10, 11 and 12 of Exhibit 6, W. Creekmore Wallace's Affidavit of July 12, 2001, which begins on p. 115 of the Appendix; e) letter of February 5, 2001, from Brian T. Her-manson to Robert Ravitz, App. 309-315; and f) numbered paragraphs 1 and 2 on p. 2 of Brian T. Hermanson's Contract, at App. 59 (and where located otherwise in additional locations in the record).
16)The request for selective sealing of the record should be granted except to the extent that the request seeks to keep from public view the list of expenses associated with overhead and the purchase of equipment and general references to budget expenses for travel and expert witness fees. Specifics as to travel destinations and utilization of expert witnesses should be excised before any document is released as a public record.
17)Original jurisdiction should be assumed and the writ of mandamus should issue. The cause should be remanded for action consistent with provisions of this order.

12 IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, THAT the contract entered between the Public Defender and Hermanson on September 23, 1999, executed through "practice and procedure," lacks constitutional, statutory or other legal authority and should be declared void. The fees and expenses heretofore paid to Her-manson are declared to be reasonable under the teachings of State v. Lynch, 1990 OK 82, 796 P.2d 1150. Application of the same standards should be utilized in the computation of any future fees.

T3 In consideration of the constitutional rights of the criminal defendant, the answer certified by the Court of Criminal Appeals in Nichols v. Jackson, 2001 OK CR 35, 38 P.3d 228, the general right of the public to know recognized by the Open Records Act, the acknowledgment that records of money budgeted for and paid in Nichols' defense have been a matter of public record since the date of the first payment in October of 1999, records relating to fees and expenditures of Nichols' defense should be selectively sealed. The request for selective sealing of the record should be granted except to the extent that the request seeks to keep from public view the list of expenses associated with overhead and the purchase of equipment and general references to budget expenses for travel and expert witness fees. Specifics as to travel destinations and utilization of expert witnesses should be excised before any document is released as a public record. The trial court is directed to rule upon all questions arising during the progress of the trial as to the selective sealing or unsealing of selected instruments, using the standards as handed down by the Court of Criminal Appeals in Nichols v. Jackson, supra.

"I 4 Original jurisdiction should be assumed and the writ of mandamus should issue directing the respondent or his successor to act in a manner consistent with provisions of this order.

15 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 27th DAY OF JUNE, 2002.

T6 CONCUR: HARGRAVE, C.J., WATT, V.C.J., HODGES, LAVENDER, OPALA, KAUGER, BOUDREAU, JJ.

T7 NOT PARTICIPATING: SUMMERS, J.

T8 DISQUALIFIED: WINCHESTER, J.


text:
    2001 OK 98
    In re INITIATIVE PETITION NO. 365, STATE QUESTION NO. 687.
    No. 94,155.
    Supreme Court of Oklahoma.
    July 2, 2002.
    Rehearing Denied Aug. 15, 2002.

      D. Kent Meyers, Roger A. Strong, Paige S. Bass, Crowe & Dunlevy, Oklahoma City, OK, attorneys for Opponents Tom Hargus and James T. Tyler.
    Larry L. Oliver, Larry L. Oliver & Associates, P.C., Tulsa, Oklahoma, and Lee Slater, Oklahoma City, OK, attorneys for Opponents James Talley, Kelly Barger, Sheryl Maize, George Day, Joseph Clinton Phillips, D.D.S., Mark Kelly, Judy Hamilton, Jeffrey Pearce, Bill MeNatt, and Mark Urbanosky and "John Doe."
    Mare Edwards, Phillips McFall McCaffrey McVay & Murrah, P.C., attorney for Petitioners.
   PER CURIAM.

11 This is an original action brought pursuant to 34 0.8.Supp.2001, § 8 by Opponents Tom Hargus and James T. Tyler and by Opponents James Talley, Kelly Barger, Sheryl Maize, George Day, Joseph Clinton Phillips, D.D.S., Mark Kelly, Judy Hamilton, Jeffrey Pearce, Bill McNatt, and Mark Ur-banosky and "John Doe" challenging the numerical and legal sufficiency of Initiative Petition No. 865, State Question No. 687 that seeks to ban cockfighting in the State of Oklahoma. We hold numerical and legal sufficiency is established and that the petition meets the standards for submission to the people.

T2 Opponents' challenges to the petition fall into two categories, to-wit: challenges to the numerical sufficiency of the signatures and numerous constitutional challenges. Petitioners argue that Opponents fail to meet their burden of clear and convincing proof regarding the invalidity of certain signature challenges and contend that the constitutional challenges lack merit.

STANDARD OF REVIEW

1 3 The proceeding in this Court is authorized by 34 O0.S.Supp.2001, § 8, 1992 Okla. Sess.Laws, ch. 92, § 7 and is not appellate in character but constitutes a transference to this Court by the Secretary of State "of all the papers and documents on file in his office relating to the initiative or referendum petition for an original investigation and hearing de novo." In re Initiative Petition No. 281, State Question No. 441, 1967 OK 230, 15, 434 P.2d 941, 945.

[ 4 This Court then transferred the matter to Referee Gregory Albert on February 22, 2000 to conduct hearings on the numerical and legal sufficiency of the signatures and to issue a report of his findings of fact and conclusions of law. The hearing commenced on October 2, 2000 and concluded on November 2, 2000. Referee Albert then issued an initial report on November 18, 2000. Petitioners made timely exceptions to this Report, and the Referee issued a Revised Report on November 28, 2000. The Referee's unchallenged findings will be accepted by this Court; we will review de novo those findings to which timely exceptions were made.

SIGNATURE CHALLENGES

15 When an opponent attacks signatures that appear on an initiative petition on the basis its signers were not registered voters, a presumption arises that the persons are registered voters. The opponent bears the burden of producing sufficient competent evidence to overcome this presumption. In re Initiative Petition No. 249, 1950 OK 238, ¶ 0, 222 P.2d 1032 (Syllabus). As we review Opponents' challenges herein, it is important to note that a successful challenge to a signature renders moot another challenge to that signature. Oklahomans for Alcoholic Beverage Controls, Inc. v. Shelton, 1972 OK 133, ¶ 15, 501 P.2d 1089, 1092.

16 Const. Art. 5, § 2 requires that the petition be signed by a number of legal voters equal to at least eight percent (8%) of "the total number of votes cast at the last general election for the State office receiving the highest number of votes at such election." The election to which we look is that of November, 1998, and the number of signatures necessary to place the instant petition before the people is 69,887. The Seere-tary of State determined the total number of signatures on the petition to be 99,750. Opponents challenge the validity of 54,897 signatures. Successful challenge to 29,864 signatures would render the petition invalid. Opponents set forth the following individual challenges.

Signatures taken by circulator Robert Godwin: 3,205

17 Opponents challenge 3,205 signatures taken by a circulator named Robert Godwin, who refused to obey subpoenas and other court orders commanding him to appear. We deny this challenge because the evidence was not critical and it would penalize Petitioners, who are blameless with regard to this cireulator's refusal to appear.

Signatures collected by Don Card: 4,120

18 Opponents challenge the validity of petitions circulated by Don Card on the basis Mr. Card was not a qualified elector as required in 34 O.S.Supp.2001, § 3.1 and under Oklahoma Constitution Article 3, § 1 that states, "Subject to such exceptions as the Legislature may prescribe, all citizens of the United States, over the age of eighteen (18) years, who are bona fide residents of this state, are qualified electors of this state." We note that a circulator is required only to be a "qualified elector," not a registered voter. Oklahomans for Modern Alcoholic Beverage Controls, Inc. v. Shelton, 1972 OK 133, ¶ 8, 501 P.2d 1089, 1092.

T9 Evidence at the hearing established Mr. Card is a United States citizen over eighteen years of age. However, Opponents presented sufficient evidence at the hearing to support a finding that Mr. Card is not a qualified elector. Therefore, we must disqualify these 4,120 signatures.

Signatures taken by circulator Billy Calvin: 7,542

10 Opponents challenge 7,542 signatures gathered by a cirealator named Billy Calvin. The evidence at the hearing established Mr. Calvin is a bona fide resident of the State of Oklahoma and is over the age of eighteen. Therefore, Mr. Calvin is a qualified elector and eligible to circulate the petition. As such, we deny this challenge.

Signatures of persons whose signatures on the petition pre-dated their voter registration dates: 143 net [483 total, 290 previously disqualified because collected by Don Card]

111 Opponents challenge these signatures and presented conclusive evidence 143 persons [net] applied for voter registration at the time they signed the petition. Pursuant to 34 0.S8.Supp.2001, §§ 3, 6 and 28, only registered voters have the right to sign initiative petitions. Therefore, we must disqualify these 148 net signatures.

Signatures collected by Arling Medina: 3,366

112 One of the petition cireulators, Mr. Arling Medina, testified that at no time did he appear before a notary public to execute the affidavits attached to the signatures he gathered. He also testified he did not sign such affidavits under oath. His testimony was corroborated by a co-worker who testified that a Ms. Herrian, the circulator in charge who notarized Mr. Medina's signature, came to Mr. Medina's office to gather previously signed pamphlets, Evidence showed that Ms. Herrian's notary logs did not reflect any record of notarization for Mr. Medina. We have held that the failure of an affiant to appear personally before a notary destroys the verification and invalidates the signatures on those sheets. Seq, e.g., In re Initiative Petition No. 347, 1991 OK 55, ¶ 48, 813 P.2d 1019, 1035, [citing In re Initiative Petition No. 142, State Question No. 205, 1746 Okl. 155, 55 P.2d 455 (1936) and In re Initiative Petition No. 281, State Question No. 441, 434 P.2d 941 at pp. 958-956 (Okl.1967) ]. Therefore, we must disqualify these 8,866 signatures.

Signatures involving defects arising from notarization Signatures on petitions where the notaries failed to file proper notary bonds: 1,246

113 Before entering upon the duties of the office, a notary must file his or her commission from the Secretary of State and a one thousand dollar ($1,000.00) bond with the court clerk for the county in which the notary resides or is employed. 49 O.S.Supp. 2001, § 2. The cireulator's affidavit is required along with a valid notarization pursu-art to 34 O.S.Supp.2001, § 6 and 12 O.S.Supp.2001, 482, respectively. We disqualified signatures on pamphlets in which the cireulator's verification was before a notary public whose commission had expired in Oklahomans for Alcoholic Beverage Controls, Inc. v. Shelton, 1972 OK 1383, T 18, 501 P.2d 1089, 1093. The undisputed evidence in the instant case established the notaries on these 1,246 challenged signatures failed to file their bonds. As such, they were without power to perform notarial acts. We must disqualify these 1,246 signatures.

Signatures challenged for defective notarization: 300

{14 Opponents challenge 300 signatures for defective notarization. The cireulator of the petitions on which these signatures appear, Ms. Inez Blandon, testified she signed her petition affidavits in the presence of Ms. Evalena Herrian, a notary. Ms. Blan-don testified at the hearing that she believed Ms. Herrian's husband, Dean Herrian, might have been present when her petition affidavits were notarized. Evidence received during the course of the hearing revealed that, in fact, it was Mr. Herrian, not Mrs. Herrian, who actually notarized Ms. Blandon's affidavits. However, Ms. Blandon's confusion does not impeach her oath as a circulator, wherein she attested to her status as a qualified elector, to the execution of the petition signatures in her presence and to her belief in the correctness of the signers' addresses. In re Initiative Petition No. 347, State Question No. 639, 1991 OK 55, 149, 813 P.2d 1019, 1036. Therefore, we deny this challenge.

Signatures challenged for illegible notary names on petitions: 153

115 Opponents challenge 153 signatures on petitions for illegible notary names. At the hearing, Petitioners elicited testimony that established these notaries were properly qualified. Therefore, we deny this challenge.

Signatures challenged on the basis the notary public's bond was not filed with the Oklahoma County Court Clerk on the day of notarization: 400

[16 Opponents challenge 400 signatures on petitions notarized by Ms. Evalena Herri-an, contending the affidavits were executed on September 16, 1999, and Ms. Herrian's notary bond was not filed with the Oklahoma County Court Clerk until September 17, 1999. The record reflects that the Court Clerk's filing stamp on Ms. Herrian's bond form shows a filing date of September 16, 1999, and we regard this as conclusive. Accordingly, we deny this challenge.

Signatures on petitions unsigned by the circulator or signed by someone other than the circulator named in the heading: 57

§17 The record established the petitions containing these 57 signatures were not verified on the back by an affidavit signed by the cireulator who gathered the signatures on the signature sheet. Some were blank, while others were signed by someone other than the named circulator, all in violation of the requirements of 34 0.8.Supp.2001, § 6. Section 6 requires each sheet of petitions containing signatures to be verified on the back by an affidavit signed by the circulator who gathered them. Therefore, we must disqualify these 57 signatures.

Forged signatures: 8

118 Petitioners' attorneys disclosed at the hearing that eight signatures were forgeries. Evidence confirmed this. Accordingly, we disqualify these 8 signatures.

Duplicate signatures: 62

$19 Opponents presented uncontro-verted evidence that 62 persons signed the petition more than once. "No legal voter properly can affix his signature to a petition more than one time. When a signature is duplicated, the duplicated signature is to be disregarded." Oklahomans for Alcoholic Beverage Controls, Inc. v. Shelton, 1972 OK 133, 113, 501 P.2d 1089, 1092-1093. Therefore, we disqualify these 62 signatures.

Signatures of persons identified as "not found" in Opponents' electronic database, consisting of data from the Oklahoma Election Management System: 34,303 net (37,146 total; 1,314 collected by Arling Medina and 1,529 collected by Don Card, previously disqualified).

120 In this proceeding, as in no other before this court, Opponents were able to compare the names and addresses of those signing the petition against the list of registered voters maintained by the Oklahoma Election Management System (OEMS). The OEMS, enacted in 1990 and codified at 26 O.S$.Supp.2001, § 3-101.1 et seq., constitutes a single, computerized official database of registered voters maintained by the State Election Board. Opponents demonstrated at the hearing that they secured the OEMS records for the period during which the petition was circulated. Opponents then converted names and addresses from the OEMS to an electronic database, against which the names and addresses on the petition were compared. Petitioners challenged the validity of the Opponents' database because it did not include certain information contained in the OEMS such as voting history, precinet information, and party affiliation. Petitioners also challenge the accuracy and stringency of Opponents' method of comparison. Finally, Petitioners challenged the authority and admissibility of the OEMS and the Opponent's database.

121 We uphold the unchallenged finding of the Referee that, besides these presently irrelevant categories (voting history, precinet information, and party affiliation), the Opponents' database otherwise mirrored the records of the OEMS with regard to the listing of registered voters. We also hold that as the official record of voter registration in Oklahoma, the OEMS serves as the authoritative tool for establishing registration and non-registration. Because the OEMS is maintained by the State Election Board, it is an official compilation which carries a presumption of correctness. As we have stated, "in the absence of evidence by the petitioner that the records were incomplete this is a sufficient showing of the correctness of the records, since the presumption is that public officials perform their duty." In Re Referendum No. 119, State Question No. 381, 1959 OK 90, ¶ 8, 339 P.2d 530. But, as with any human endeavor, errors may occur in the process of comparing the signers of a petition against the OEMS. This imprecision will be compounded greatly if a petition's challengers require an overly-stringent match between the petition signer's name or address and the OEMS. We note that challengers to a petition often have strong incentives to require such an exacting match, and the result of these incentives is a difficulty in determining the true registration status of a petition's signers.

122 We therefore take this opportunity to state explicitly the process used to determine the degree of similarity and accuracy required in comparing a name listed on a petition to the OEMS. A petition's challengers may establish a prima facie case of non-registration by proving that a petition signer is not found in the OEMS during the time of the petition's cireulation. A challenger's prima facie case may be overcome by a petition's proponents. Petitioners may specifically rebut a challenged signature by offering proof that a challenged voter is in fact registered. More broadly, petitioners may defeat a class of challenges by establishing that opponents were generally capricious, unreasonable, or inaccurate in comparing the names or addresses of the petition signers against the OEMS. For example, suppose a petition's opponents challenge a petition signer's registration because the address the signer lists on the petition does not match the address in the OEMS. Just as a voter must rebut an assumption of non-registration caused by a failure to find his or her name or address on the official registration list at a voting booth by presenting adequate documentation of his or her identity and address, Petitioners must rebut opponent's challenge of non-registration by proving that the signer is a registered voter who, for instance, has moved but failed to update his or her address for the OEMS. As we have established, "[t]he need for an address is for verification purposes; if a signer can be located through due diligence, then the address given is sufficient." In re Initiative Petition 317, State Question No. 556, 1982 OK 78, ¶ 40, 648 P.2d 1207. Obviously, these categories of rebuttals are not mutually exclusive. If Petitioners overcome a significant number of challenges during the course of a hearing, it could lead us to find that Opponents were on the whole insufficiently fair or careful in their efforts.

123 Throughout this process a petition's opponents shoulder the ultimate burden of proving non-registration clearly and convine-ingly. "There is no presumption of accuracy as to the check of these records and it is the duty of [Opponents] to offer clear and convincing evidence of nonregistration." In Re Referendum No. 119, State Question No. 381, 1959 OK 90, ¶ 9, 339 P.2d 530. , Neither the OEMS nor the three-stage test lessens this burden. Rather, the OEMS is an authoritative tool which may be used to establish non-registration, and the burden-shifting framework merely establishes explicitly the process used to evaluate the validity of signatures.

124 Analyzing the current case under this approach, Opponents challenge 34,-303 net signatures for non-registration because the names and/or addresses were "not found" in the Opponents' copy of the OEMS. "Not found" in this context means that Opponents' checkers found that the first name was not sufficiently similar and/or that the middle initial, last name, or address was not an exact match of a listing in the Opponents' database. Petitioners were unable to reach 4,820 of the challenges, and 12,968 were inadequately rebutted, leaving these 17,288 signatures successfully challenged and thus disallowed. Of the remaining 17,015 signatures, Petitioners specifically rebutted 36 signatures by producing voter registration cards. Further, Petitioners cast doubt on Opponents' system of checking signatures by proving during the constraints of the hearing that 2,681 signatures challenged by Opponents were in fact exact matches of names and addresses found in the OEMS. Finally, Petitioners showed that in 14,298 challenged signatures, at least one exact match or substantively similar mame existed in Petitioners' database. Petitioners' database was also based on the OEMS, but, because it is slightly outdated in some regards and modified in others, is not an official record of the registration list during the time period. Nonetheless, Petitioners' database is a somewhat useful tool to establish registration. While such evidence alone would be insufficient to positively prove registration or non-registration, when combined with Petitioners' other successful rebuttals, it causes us to sufficiently doubt the accuracy of these 14,298 challenges such that these challenges lack the necessary clear and convincing proof of non-registration. We must therefore deny these challenges and uphold these signatures as valid.

{25 The number of successful challenges to signatures by Opponents thus stands at 26,290. This number falls short of the 29,864 required to invalidate the initiative petition on the basis of numerical insufficiency. We find 78,460 of the total 99,750 signatures determined by the Secretary of State are valid. As such, we hold that the initiative petition is numerically sufficient to be presented on the ballot for a vote of the people.

CONSTITUTIONAL CHALLENGES

126 Generally, we decline to declare an initiative invalid prior to a vote of the people exeept when there is a 'clear or manifest' showing of unconstitutionality. Seq, eg., In re Initiative Petition No. 362, State Question No. 669, 1995 OK 77, 112, 899 P.2d 1145, 1151, citing In re Initiative Petition No. 358, State Question No. 658, 1994 OK 27, 17, 870 P.2d 782, 785. Accordingly, we decline consideration of the issues advanced by Opponents relative to asserted constitutional invalidity of the instant initiative petition.

CONCLUSION

T27 From examination of all the evidence we conclude the petition is valid in the form required by statutes, that the petition is signed by a sufficient number of legal voters of this state, and that the petition should be submitted to the people for determination. Accordingly, we hold that the initiative petition is legally sufficient numerically and that the ballot title meets the standards for submission to the people.

1 28 INITIATIVE PETITION NO. 865 IS DECLARED SUFFICIENT FOR SUBMISSION TO THE VOTE OF THE PEOPLE OF THE STATE OF OKLAHOMA AS STATE QUESTION NO. 687.

{29 HARGRAVE, C.J., WATT, V.C.J., HODGES, LAVENDER, OPALA, KAUGER, BOUDREAU and WINCHESTER, JJ., concur.

I 30 SUMMERS, J., not participating.


author: KAUGER, J:

text:
    2002 OK 66
    Aleecia LEAK-GILBERT and Dolcie Leak, Plaintiffs, v. Pauline FAHLE, Defendant.
    No. 97,540.
    Supreme Court of Oklahoma.
    July 16, 2002.

      Timothy A. Heefner, Kirk Olson, Oklahoma City, Oklahoma, for Plaintiffs.
    John B. Hayes, Robert D. Dennis, Oklahoma City, Oklahoma, for Defendant.
   KAUGER, J:

' 1 We are asked to answer two questions: 1) whether, in the absence of a specific request by the client, an attorney owes a duty to the client or to the beneficiaries named in the client's will to conduct an investigation into the client's heirs independent of, or in addition to, the information provided by the client; and 2) whether the residual beneficiaries under a decedent's will have a cause of action for legal malpractice against the attorney who drafted the will under a theory of negligence or breach of contract when the will fails to identify all the decedent's heirs? We hold that: 1) when an attorney is retained to prepare a will, the attorney's duty to prepare the will according to the testator's wishes does not ordinarily include an investigation of a client's heirs independent of, or in addition to, the information provided by the client, unless the client requests such an investigation; and 2) an intended will benefi-clary may maintain a legal malpractice action under either negligence or contract theories against the drafter when the will fails to identify all the decedent's heirs as a result of the attorney's substandard professional performance.

FACTS

12 This cause concerns a dispute over the will of a widower, Edward Leak (Mr. Leak/decedent), which was executed in Talo-ga, Oklahoma, on February 4, 1997. In early 1997, Mr. Leak hired the defendant, Pauline Fahle (Fahle/lawyer) to update his will. According to the lawyer, Mr. Leak gave her a copy of his existing will. He told her that he wanted to change his personal representative to his daughter-in-law, Jolene Leak, the wife of his deceased son, and that he also wanted her to receive his gun collection.

T3 The lawyer insists that Mr. Leak identified his only heirs as the children of his deceased son (Alvin Troy Leak), Alvin James Leak, and the plaintiffs, Aleecia Leak-Gilbert and Dolcie Leak (beneficiaries). Mr. Leak also informed the lawyer that he wanted to disinherit the grandson. Consequently, the lawyer prepared a will, made Mr. Leak's requested changes and left the grandson one dollar and gave the granddaughters equal shares of the remainder of his estate.

T4 After the Mr. Leak died in December of 1999, the will was submitted for probate. The probate proceeding revealed that Mr. Leak had four additional grandchildren by another deceased son, Clifford Wayne Leak, who were not mentioned in Mr. Leak's will. Consequently, the probate court treated the grandchildren as unintentionally omitted heirs, and it divided the estate among the grandchildren as if the decedent had died intestate.

5 On June 22, 2001, the beneficiaries filed a legal malpractice action in federal district court against Fahle, asserting that she was negligent, and that she had breached the contract with the decedent because she failed to properly prepare his will according to his intentions. The beneficiaries allege that Fahle did not complete an investigation into the existence of the decedent's children or grandchildren. They insist that Fable should have reviewed all of the files of her sister-the lawyer who had probated decedent's wife's will in 1989 which would have disclosed the omitted grandchildren.

1 6 The lawyer answered the beneficiaries' complaint and insisted that, while her sister may have handled the probate of the decedent's wife, she died in 1990 and she and her sister never practiced law together. She did admit that they shared an office space for a very short period prior to her sister's death, and that her sister's files remain stored in the office building.

17 On December 6, 2001, the lawyer moved for summary judgment. Recognizing that state law is determinative of Fahle's liability and that Oklahoma has not addressed the precise issue presented, but that a split of authority exists in other states, the federal court certified questions to this Court pursuant to the Uniform Certification of Questions of Law Act. 20 0.8.2001 § 1601 et seq. on April 2, 2002. We set a briefing cycle which was completed on May 14, 2002.

I.

18 WHEN AN ATTORNEY IS RETAINED TO PREPARE A WILL, THE ATTORNEY'S DUTY TO PREPARE THE WILL ACCORDING TO THE TESTATOR'S WISHES DOES NOT ORDINARILY INCLUDE AN INVESTIGATION OF A CLIENTS HEIRS INDEPENDENT OF, OR IN ADDITION TO, THE INFORMATION PROVIDED BY THE CLIENT, UNLESS THE CLIENT REQUESTS SUCH AN INVESTIGATION.

T9 The beneficiaries assert that an attorney's duty when preparing testamentary documents includes: 1) inquiring into the client's heirs at law; 2) offering a proper explanation and advising the client as to what is meant by heirs at law and the significance of including all heirs at law in a will; and 3) confirming the heir information by conducting an investigation into a client's heirs independent of, or in addition to, the information provided by the client, even when not requested to do so. The beneficiaries offer no authority recognizing such a duty.

1 10 The lawyer does not dispute that the drafter of a will has a duty, absent a specific request by the client, to inquire, explain, or advise a client regarding heirs at law. Rather, she argues that the lawyer has no duty to confirm the client's information by conducting an independent investigation into the client's heirs. The lawyer cites to Stangland v. Brock, 109 Wash.2d 675, 747 P.2d 464 and Leavenworth v. Mathes, 38 Conn.App. 476, 661 A.2d 632 as persuasive authority in support of her argument.

$11 Lawyers are required to exercise ordinary professional skill and diligence in rendering their professional. Accompanying every contract is a common-law duty to perform with care, skill, reasonable experience and faithfulness the thing agreed to be done. Duty of care is a question of law described as the total of policy considerations which lead to the conclusion that the plaintiff is entitled to protection. If a duty exists, the trier of fact then determines whether a violation of that duty has occurred.

112 In Stangland v. Brock, supra, an attorney drafted a will for a client leaving all of the client's real property to certain beneficiaries. Three years later, the client sold the real property and another attorney in the same firm prepared the real estate contract. The sale of the real property affected the disposition of the estate. After the testator died, the beneficiaries brought legal malpractice actions against the attorneys asserting that both attorneys, at the time the real estate contract was drafted, had a duty to advise the client that the sale of the property could affect his estate plan.

{13 The Stangland court determined that holding attorneys to such a duty would expand the obligation of a lawyer who drafts a will beyond reasonable limits. It recognized that the time and expense which would be required for the attorney to monitor the testator's activities with respect to his property would prevent the attorney from providing reliable and economical services, and that it would constitute an overwhelming burden on the attorney's practice as a whole. Additionally, holding the attorney to such a duty would place an unreasonable burden on the attorney, would markedly increase the cost of providing legal services, and would impute knowledge of the contents of the client's will.

{ 14 In Leavenworth v. Mathes, supra, an attorney drafted a will pursuant to the client's wishes which included the distribution of certain assets. When the testator died, the assets of the estate were insufficient to satisfy the specific bequests to the beneficiaries. The beneficiaries brought a negligence action against the attorney. The court held that an attorney owes no duty to will beneficiaries to ensure the existence of testamentary assets when drafting a will. It recognized that although court have allowed intended beneficiaries to maintain a cause of action against attorneys who fail to draft a will in conformity, with a client's wishes, the malpractice claims always focus on errors in the drafting and execution of the will rather than misinformation from clients.

115 The reasoning behind Stangland and Leavenworth, applies here, where it appears that the attorney may have been given incomplete or inaccurate information. We agree with the beneficiaries that when an attorney is hired to prepare a will, the attorney's obligation is to: 1) inquire into the client's heirs at law; 2) offer a proper explanation; 3) advise the client as to what is meant by heirs at law; 4) explain the significance of including all heirs at law in a will; and 5) prepare a will according to the client's directions.

116 However, to hold that an attorney has a duty to confirm heir information by conducting an investigation into a client's heirs independent of, or in addition to, the information provided by the client, even when not requested to do so, would expand the obligation of the lawyer beyond reasonable limits, The duty between an attorney and third persons affected by the attorney-client agreement should not be any greater than the duty between the attorney and the client. Although some exceptional cireum-stances might exist which would give rise to such a duty, none are present here. Consequently, we hold that, unless the client requests such an investigation, when an attorney is retained to draft a will, the attorney's duty to prepare a will according to the testator's wishes does not include the duty to investigate into a client's heirs independent of, or in addition to, the information provided by the client.

II.

17 AN INTENDED WILL BENEFICIARY MAY MAINTAIN A LEGAL MALPRACTICE ACTION UNDER NEGLIGENCE OR CONTRACT THEORIES WHEN THE WILL FAILS TO IDENTIFY ALL THE DECEDENTS HEIRS AS A RESULT OF THE ATTORNEY'S SUBSTANDARD PROFESSIONAL PERFORMANCE.

% 18 The beneficiaries argue that: 1) liability for legal malpractice should extend to intended beneficiaries of a will when the will does not carry out the testator's expressed intent and does not identify all of the decedent's heirs; and 2) Oklahoma should follow the majority rule allowing intended beneficiaries to assert malpractice claims based on contract or tort theories of recovery. The lawyer concedes that an attorney could be guilty of malpractice if the client revealed necessary heirship information and the attorney failed to include it in the will. Nevertheless, she asserts that if the client fails to fully and accurately disclose his/her heirs, no malpractice action exists.

119 We note at the outset that the trial court must resolve the disputed fact questions which exist regarding whether the client disclosed all of his heirs and whether the lawyer: 1) inquired into the client's heirs at law; and 2) offered a proper explanation and advised the client as to what is meant by heirs at law and the significance of including all heirs at law in a will. Nevertheless, the question remains whether liability may be extended to will beneficiaries and under what theory they may assert their cause of action.

120 Accompanying every contract is a common law duty to perform the contract with care, skill, reasonable experience and faithfulness the thing agreed to be done. A negligent failure to perform these duties is a tort and a breach of contract. An action for breach of contract and an action in tort may arise from the same set of facts. At common law, privity of contract was required before a tort action could arise from a breach of duty created by contract-ie. limiting liability to contracting parties. However, liability for negligent breach of a contract with a third party is not necessarily dependent upon a pre-existing privity in legal relationship between the person injured and the person causing the injury.

121 This Court has previously addressed the extension of an attorney's liability, in the absence of privity, to third party, non-client, will beneficiaries in Hesser v. Central National Bank & Trust Co. of Enid, 1998 OK 15, 956 P.2d 864. In Hesser, we held that a will beneficiary could maintain a negligence action against an attorney for failure to have the will properly executed.

11 22 Hesser involved an attorney who prepared a will for a client and then failed to properly execute the will. In the probate proceeding, the heirs at law contested the will, arguing that it was not properly executed. Subsequently, the matter was settled by agreement. Nevertheless, one of the beneficiaries under the will brought a legal malpractice action, asserting that the attorney was negligent in failing to properly execute the will. It was uncontested that the plaintiff was a third-party beneficiary to the agreement.

€ 23 The Hesser Court recognized that: 1) as part of the agreement to prepare the will, the attorney was under a common law duty to perform with care, skill, reasonable expediency and faithfulness to properly execute the will; and 2) a duty created by a contract may be extended to a third party when the contract is made expressly for the benefit of a third-party, non-client beneficiary and the harm to the beneficiary is foreseeable. The Court determined that intended beneficiaries of a will could maintain an action against the lawyer because, as a matter of law, it was foreseeable that an intended beneficiary under the terms of a will could be harmed by an attorney's failure to have the will properly executed.

{24 A few jurisdictions refuse to allow non-client, intended beneficiaries to bring such malpractice actions. However, our decision in Hesser is in accord with the majority of jurisdictions which recognize that intended beneficiaries harmed by a lawyer's malpractice may maintain a cause of action against lawyers who draft testamentary doe-uments even though no attorney-client relationship exists. Some of these courts have recognized such actions as negligence actions, while others have determined that in an intended will beneficiary may proceed under either negligence or contract theories. Those allowing an intended beneficiary of a will to assert a third party breach of contract theory generally recognize that when such a breach occurs, named intended beneficiaries of a will also hold third party beneficiary status under the agreement between the testator and the attorney to draft a will according to the testator's wishes.

125 We have not previously determined whether a non-client, third party, such as an intended benéficiary of a will, is limited to asserting a legal malpractice action based on a negligence theory of recovery or whether breach of a third party intended beneficiary contract theory may alternatively be asserted. However, in Great Plains Federal Savings and Loan Association v. Dabney, 1998 OK 4, 846 P.2d 1088, we addressed third party beneficiary breach of contract actions in the context of an attorney and a non-client. Dabney involved a bank which asserted that its mortgagee had allegedly contracted with an attorney to search records of the county clerk and that it was a third party beneficiary of the contract. When it was discovered that the attorney breached the contract, the bank brought a third party breach of contract action against the attorney. The Court determined if an attorney breaches a contract with a client by failing to perform a specific, contracted for obligation, a third party, non-client may assert a breach of contract action against the attorney if the non-client can show third party beneficiary status.

126 Hesser teaches that when a lawyer undertakes to fulfill the testamentary instructions of a client, the lawyer must be aware that any consequences flowing from the lawyer's negligence will have an impact on the named beneficiaries. The failure of a testamentary scheme deprives the intended beneficiaries of their bequests. If the failure is due to substandard professional performance, it is reasonable to conclude that the injured parties should recover against the lawyer who caused their harm. Dabney teaches that when a third party, non-client is the person specifically intended to be benefit-ted by the legal services, the non-client may assert a breach of contract action against the lawyer.

% 27 Our decisions in Hesser and Dab-mney are consistent with those jurisdictions which allow intended will beneficiaries to assert malpractice claims. Consequently, we hold that an intended will beneficiary may maintain a legal malpractice action under negligence or contract theories against an attorney when the will fails to identify all of the decedent's heirs as a result of the attorney's substandard professional performance.

CONCLUSION

1 28 When an attorney is hired to prepare a will according to the client's directions, unless the client requests such an investigation, the attorney's obligation does not ordinarily include the duty to investigate the existence of a client's heirs independent of, or in addition to, the information provided by the client. Nevertheless, we recognize that when the will fails to identify all of the decedent's heirs as a result of the attorney's substandard professional performance, an intended will beneficiary may maintain a legal malpractice action under negligence or contract theories against an attorney.

WATT, V.C.J., HODGES, LAVENDER, OPALA, SUMMERS, BOUDREAU, WINCHESTER, JJ., concur.

HARGRAVE, C.J., concurs in part; dissents in part.

      . The will provides in pertinent part:
      "... I direct that my Personal Representative sell all real property and personal property that I own in the state of Oklahoma, under Order of the Court, and that the proceeds, after all expenses are paid, be divided as follows:
      1. Alvin James Leak, grandson-$1.00;
      2. Alee Leak, grand-daughter-one-half (%) of the remaining proceeds, including the sale of real and personal property, cash and contracts of sale.
      3. Dolcie Leak, grand-daughter-one-half of remaining proceeds, including sale of real and personal property, cash and contracts of sale...."

      . Title 84 0.$.2001 § 132 provides:
      ''When any testator omits to provide in his will for any of his children, or for the issue of any deceased child unless it appears that such omission was intentional, such child, or the issue of such child, must have the same share in the estate of the testator, as if he had died intestate, and succeeds thereto as provided in the preceding section."

      . See generally, Annot., "What Constitutes Negligence Sufficient to Render Attorney Liable to Person other than Immediate Client," 61 A.L.R.Ath 464 (1988).

      . The only authority offered by the beneficiaries is that: 1) the Oklahoma Uniform Jury Instructions define the duty of an attorney as possessing the degree of knowledge and ability ordinarily possessed by other members of that profession and exercising ordinary care, skill, diligence, and knowledge in the performance of service; 2) Hesser v. Central Nat'l Bank & Trust Co. of Enid, 1998 OK 15, 116, 956 P.2d 864 provides that a will drafting attorney is under a common law duty to perform with care, skill, reasonable expediency, and faithfulness; and 3) Miller v. Dobbs, 1937 OK 500, ¶ 5, 71 P.2d 737 provides that whether ordinary care has been exercised in a given case is a question of fact to be determined by the jury.

      . See, Norton v. Hughes, 2000 OK 32, 112, 5 P.3d 588 [Duty to see rights protected as fully as possible under the prevailing circumstances within the bounds of common sense and proper professional practices.]. See also, Vanguard Production, Inc. v. Martin, 894 F.2d 375, 378 (1990) [workmanlike duty]; Wabaunsee v. Harris, 1980 OK 52, ¶ 12, 610 P.2d 782; Birchfield v. Harrod, 1982 OK CIV APP 2, ¶ 32, 640 P.2d 1003.

      . Lewis v. Farmers Ins. Co., Inc., 1983 OK 100, 15, 681 P.2d 67; Keel v. Titan Constr. Corp., 1981 OK 148, ¶ 14, 639 P.2d 1228.

      . Delbrel v. Doenges Bros. Ford, Inc., 1996 OK 36, ¶ 7, 913 P.2d 1318; Wofford v. Eastern State Hospital, 1990 OK 77, ¶ 10, 795 P.2d 516.

      . Salazar v. City of Oklahoma City, 1999 OK 20, 120, 976 P.2d 1056; Malson v. Palmer Broadcasting Group, 1997 OK 42, 112, 936 P.2d 940.

      . See also, Pizel v. Zuspann, 247 Kan. 699, 803 P.2d 205, 206 (1990) [Settlor's attorney did not have continuing duty to assure settlor's intentions were carried out and did not have an obligation to periodically check to assure trust was in operation according to settlor's wishes}; Davis v. Somers, 140 Or.App. 567, 915 P.2d 1047, 1049 (1996) [Attorney had no duty to periodically review will client had approved, absent specific request by client to do so.]; Anderson v. McBurney, 160 Wis.2d 866, 467 N.W.2d 158, 160 (1991) [Attorneys were not liable for negligently investigating heirship.]; Lovett v. Estate of Lovett, 250 N.J.Super. 79, 593 A.2d 382, 386 (1991) [Attorney's failure to refuse to proceed with drafting of will or to have testator psychiatrically examined before proceeding did not constitute malpractice nor was attorney required to meet with testator outside the presence of the testator's wife.]. Courts have also held that an attorney does not owe a duty to the beneficiaries for the negligent delay in the execution of the estate planning documents. Gregg v. Lindsay, 437 Pa.Super. 206, 649 A.2d 935 (1994) [A would be beneficiary could not pursue an action against attorney as third party beneficiary based upon failure to execute new will prior to testator's death.]; Krawczyk v. Stingle, 208 Conn. 239, 543 A.2d 733, 736 (1988) [Attorney not liable to third parties for alleged negligent delay in execution of estate planning documents.].

      . We do not address whether beneficiaries may maintain a legal malpractice action against the attorney who represents the estate or a third party, non-beneficiary. See, e.g., Barner v. Sheldon, 292 N.J. Super. 258, 678 A.2d 767, 771 (1995) [Attorney owed no duty to beneficiaries to inform them of their right to disclaim their share of estate which would have resulted in tax avoidance or diminution where beneficiaries' interest was adversarial to testator's expressed intent.]; Schmitz v. Crotty, 528 N.W.2d 112, 117 (Iowa 1995) [In suit brought by beneficiaries of estate's attorney for legal malpractice the court held that the attorney breached duty of care in handling estate tax returns.]; Holsapple v. McGrath, 521 N.W.2d 711, 712-13 (Iowa 1994) [Third party alleging legal malpractice in preparation of nontestamentary instrument can recover by establishing that third party was specifically identified by grantor as object of grantor's intent and that expectancy was lost or diminished as a result of professional negligence.]; Hopkins v. Akins, 637 A.2d 424 (D.C.1993) [Beneficiary of estate may not sue the attorney of the personal representative for negligence.].

      . Lewis v. Farmers Ins. Co., Inc., see note 6, supra; Keel v. Titan Constr. Corp., see note 6, supra.

      . Great Plains Federal Savings & Loan Association v. Dabney, 1993 OK 4, ¶ 7, 846 P.2d 1088; Flint Ridge Dev. v. Benham-Blair & Affiliates, 1989 OK 48, ¶7, 775 P.2d 797; Keel v. Titan Constr. Corp., see note 6, supra.

      . Boren v. Thompson & Associates, 2000 OK 3, 22, 999 P.2d 438.

      . Id.; Keel v. Titan Construction Corp., see note 6, supra.

      . A few jurisdictions retain the rule that, absent fraud, collusion or malice, an attorney is not liable to a non-client for harm caused by the attorney's negligence in the drafting of a will or planning an estate. See, Miller v. Mooney, 431 Mass. 57, 725 N.E.2d 545 (2000) [Testatrix's children could not enforce any contract between testatrix and attorney as third party beneficiary and the attorney owed the children no duty of care.]; McDonald v. Pettus, 337 Ark. 265, 988 S.W.2d 9 (1999) [Children of testator did not satisfy privity requirements of lawyer immunity statute and could not bring a third party beneficiary legal malpractice claim against will drafting attorney.]; Nevin v. Union Trust Co., 1999 ME 47, 726 A2d 694, 700 (1999) [Individual beneficiaries do not have standing to sue estate planning attorney for malpractice when they are not the client who retained the attorney and when the estate is represented by a personal representative who stands in the shoes of the client.]; Noble v. Bruce, 349 Md. 730, 709 A.2d 1264, 1276 (1998) [Absence of privity precluded beneficiaries' actions against attorney who drafted will particularly where no evidence contradicts the supposition that the purpose of the contractual relationship was to benefit the testator, not beneficiary.]; Barcelo v. Elliott, 39 Tex. Sup.Ct.J. 607, 923 S.W.2d 575, 577 (1996) [Attorney owes no professional duty of care to trust beneficiaries.]; Glover v. Southard, 894 P.2d 21, 23-24 (Colo.App.1994) [In action against will drafting attorney for failure to revise will, attorney owed no duty or contractual duty to residual beneficiary.]; Copenhaver v. Rogers, 238 Va. 361, 384 S.E.2d 593, 597-98 (Va.1989) [Grandchildren, remaindermen under grandparents' testamentary trust, were precluded from bringing a legal malpractice action in tort for negligent performance of legal services, absent privity, or an intended third-party beneficiary claim absent allegations that they were the intended beneficiaries of contract.]; Simon v. Zipperstein, 32 Ohio St.3d 74, 512 N.E.2d 636, 638 (1987) [Will beneficiary was not in privity with attorney preparing will and thus did not have standing.]; Lilyhorn v. Dier, 214 Neb. 728, 335 N.W.2d 554, 555 (1983) [Attorney's duty does not extend to heir who was not client]; St. Mary's Church of Schuyler v. Tomek, 212 Neb. 728, 325 N.W.2d 164, 165 (1982) [Attorney who prepared will had no duty to purported beneficiaries of the will.]; Spivey v. Pulley, 138 A.D.2d 563, 526 N.Y.S.2d 145, 146 (1988) [Privity of contract is lacking.]; Conti v. Polizzotto, 243 A.D.2d 672, 663 N.Y.S.2d 293 (1997) [Beneficiaries are not in privity with will drafting attorney.]; Wright v. Gundersen, 956 S.W.2d 43 (Tex.App.1996) [Attorney-client relationship did not exist between attorney and testator's daughter, as required to bring negligence claim against attorney and daughter lacked standing to assert a breach of contract claim against attorney.].

      . Blair v. Ing, 95 Hawai'i 247, 21 P.3d 452, 463 (2001) [Where relationship between attorney and beneficiaries of trust was such that duty of care would be recognized, the beneficiaries could proceed under either negligence or contract theories.]. Powers v. Hayes, 776 A.2d 374, 375 (Vt.2001) [Fact questions concerning causation precluded summary judgment against testator's daughter who brought legal malpractice action against the attorney who drafted testator's will for failing to advise testator that changes to IRA beneficiary are not controlled by the will.]; Mieras v. DeBona, 452 Mich. 278, 550 N.W.2d 202 (1996) [Beneficiary named in will may bring tort-based action against attorney who drafted will for negligent breach of standard of care owed to beneficiary by nature of beneficiary's third-party status.]; Simpson v. Calivas, 139 N.H. 1, 650 A.2d 318, 322 (1994) [Duty runs from attorney to intended beneficiary of will and an identified beneficiary may enforce the terms of the testator's contract with the attorney as third party beneficiary.]; McLane v. Russell, 131 Ill.2d 509, 137 Ill. Dec. 554, 546 N.E.2d 499, 501-502 (1989) [A non-client beneficiary may maintain a negligence action against an attorney only when non-client can show that he was primary intended beneficiary of attorney-client relationship.]; Walker v. Lawson, 526 N.E.2d 968 (1988) [An action lies by a beneficiary under a will against the attorney who drafted that will on the basis that the beneficiary is a known third party.]; Schreiner v. Scoville, 410 N.W.2d 679, 682 (1987) [A lawyer owes a duty of care to the direct, intended, and specifically identifiable beneficiaries of the testator as expressed in the testator's testamentary instruments.] Hale v. Groce, 304 Or. 281, 744 P.2d 1289, 1292 (1987) [Intended beneficiary of lawyer's promise to client to include beneficiary within will may enforce contractual duty created and because contract created a duty not only to client, but also to intended beneficiary, negligent nonperformance may give rise to negligence action.]; Stangland v. Brock, 109 Wash.2d 675, 747 P.2d 464, 467-68 (1987) [A cause of action can exist under either negligence or third party beneficiary contract, but attorney's conduct did not fail to conform to applicable standard of care.]; Ogle v. Fuiten, 102 Ill.2d 356, 80 Ill.Dec. 772, 466 N.E.2d 224, 226 (1984) [A non-client may maintain either a negligent action or third party breach of contract action.]; Needham v. Hamilton, 459 A.2d 1060 (D.C.1983) [Intended beneficiary of a will may have a malpractice cause of action against drafting attorney for negligence.]; Guy v. Liederbach, 501 Pa. 47, 459 A.2d 744, 746 (1983) [While privity is required to maintain an action in negligence for professional malpractice, a named legatee of a will may bring suit as an intended third party beneficiary of the contract between the attorney and the testator for the drafting of a will which specifically names the legatee as a recipient of all or part of estate.]; Auric v. Continental Casualty Co., 111 Wis.2d 507, 331 N.W.2d 325, 328 (1983) [A beneficiary may maintain an action against an attorney who negligently drafted or supervised execution of a will even though the beneficiary is not in privity with that attorney.]; Stowe v. Smith, 184 Conn. 194, 441 A.2d 81, 83 (1981) [Beneficiary of will claim against attorney who drafted will which alleged will contained significant mistakes stated a cause of action as third party beneficiary of contract.]; Lucas v. Hamm, 56 Cal.2d 583, 15 Cal.Rptr. 821, 364 P.2d 685, 688-89 (1961), cert. denied, 368 U.S. 987, 82 S.Ct. 603, 7 L.Ed.2d 525 (1962) [Intended beneficiaries who lost testamentary rights because of failure of attorney could assert tort or contract claim against attorney.]; Passell v. Watts, 794 So.2d 651 (Fl.App.2001) [Intended residual beneficiaries of testamentary documents have standing to bring an action for legal malpractice if they are able to show that the testator's intent as expressed in the will is frustrated by the negligence of the testator's attorney.]; Francis v. Piper, 597 N.W.2d 922, 924 (Minn. App.1999) [In limited cases, an attorney is liable to a non-client third party if the client's sole purpose in retaining an attorney is to provide a benefit directly to the third party.]; Johnson v. Sandler, Balkin, Hellman & Weinstein, 958 S.W.2d 42, 49 (Mo.App.1997) [A legal duty is owed by an attorney to a non-client who was the intended beneficiary of a will or trust, but fact issue existed as to whether the attorney was retained to benefit beneficiaries.]; Teasdale v. Allen, 520 A.2d 295 (D.C.App.1987) [Allegedly intended beneficiaries had standing to bring legal malpractice action.]; Woodfork v. Sanders, 248 So.2d 419, 425 (La.App.1971) [Universal legatee was not precluded from maintaining an action against attorney on theory of lack of privity]; Licata v. Spector, 26 Conn.Supp. 378, 225 A.2d 28, 30 (1966) [Beneficiaries under a will which was invalid for lack of statutory requisites of attesting witnesses may maintain a negligence action against attorney drafting will.}; See also, Persche v. Jones, 387 N.W.2d 32, 35 (S.D.1986) [Based on rule that beneficiary actions exist under either third party or tort theories against the attorney responsible for drafting a defective testamentary instrument, a non-attorney banker who assists decedent in drafting will owes duty of care.]; Rathblott v. Levin, 697 F.Supp. 817, 819 (D.N.J.1988) [Will drafting attorney could be liable to beneficiary despite lack of privity.]; Wisdom v. Neal, 568 F.Supp. 4, 7 (D.N.M.1982) [No attorney-client relationship was necessary to per-rait heirs to maintain action that attorney owed a duty of care to heirs.]. Some courts have implied that a cause of action might exist, but determined that under the facts, such an action would be barred by the statute of limitations. See, Hargett v. Holland, 337 N.C. 651, 447 S.E.2d 784, 786 (1994) [Beneficiary suit against attorney for negligent will drafting was barred by statute of limitations.]; Jaramillo v. Hood, 93 N.M. 433, 601 P.2d 66, 67 (1979) [Recognizing that beneficiary may have a cause of action for negligence in will drafting as well as seeing to its proper execution, but under facts of case, the action was barred by statute of limitations.]; Riser v. Livsey, 138 Ga. App. 615, 227 S.E.2d 88 (1976) [An action for damages by beneficiary against attorney who drafted will was barred by statute of limitation.].

      . See, Powers v. Hayes, see note 16, supra; Schreiner v. Scoville, see note 16, supra; Needham v. Hamilton; Auric v. Continental Casualty Co., see note 16, supra; Mieras v. DeBona, see note 16, supra.

      . Blair v. Ing, see note 16, supra; Simpson v. Calivas, see note 16, supra; Hale v. Groce, see note 16, supra; Ogle v. Fuiten, see note 16, supra. Pennsylvania allows named beneficiaries under a will to assert an action in assumpsit against an attorney, but not negligence. See, Guy v. Liederbach, note 16, supra. One court has determined that an intended beneficiary may assert a third party beneficiary breach of contract action without discussing negligence theories of recovery. See Stowe v. Smith, note 16, supra.

      . Blair v. Ing, see note 16, supra; Simpson v. Calivas, see note 16, supra; Hale v. Groce, see note 16, supra; Ogle v. Fuiten, see note 16, supra.

      . A contract made expressly for the benefit of a third person may be enforced by the third person. Title 15 0.$.2001 § 29 provides:
      "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."
      The primary issue in a case where the suing plaintiff claims third party beneficiary status is whether the direct parties to the contract recognized the third party to have such status. Great Plains Federal Savings & Loan Association v. Dabney, see note 12, supra.

      . Our conclusion in this regard should not be read to expand our holding in Great Plains Federal Savings and Loan Association v. Dabney, see note 12, supra, as it relates to a suit in contract against an attorney for professional malpractice.