Cutler v. Klass, Whicher & Mishne

• Citation: 473 N.W.2d 178
• Decision Date: 17 July 1991
• Docket Number: No. 90-823,90-823
• Parties: Karen M. CUTLER, Executor of the Estate of Daniel T. Cutler, Deceased, Appellant, v. KLASS, WHICHER & MISHNE; Marvin J. Klass; Theodore M. Whicher; Robert D. Mishne; David C. Nyberg; Willis A. Buell; James C. Hanks; Roger L. Carter; Janet J. Brown; and James R. Villone, and each of them individually, Appellees.
• Court: United States State Supreme Court of Iowa

Page 178

473 N.W.2d 178

Karen M. CUTLER, Executor of the Estate of Daniel T. Cutler, Deceased, Appellant, v. KLASS, WHICHER & MISHNE; Marvin J. Klass; Theodore M. Whicher; Robert D. Mishne; David C. Nyberg; Willis A. Buell; James C. Hanks; Roger L. Carter; Janet J. Brown; and James R. Villone, and each of them individually, Appellees.

No. 90-823.

Supreme Court of Iowa.

July 17, 1991.

John L. Riccolo and David L. Baker of Riccolo & Baker, Cedar Rapids, for appellant.

James L. Kramer and Thomas J. Bice of Johnson, Erb, Latham, Gibb & Carlson, P.C., Fort Dodge, for appellees.

Considered by HARRIS, P.J., and SCHULTZ, CARTER, LAVORATO, and NEUMAN, JJ.

HARRIS, Justice.

This suit against a Sioux City law firm arises from the suicide of a firm member. Shortly before the suicide the firm communicated to the distraught partner the fact that it was delaying a decision on allowing him to return to work. The claims ascribe responsibility for the suicide to the manner in which the firm communicated with decedent. By rulings on a motion to dismiss and a motion for summary judgment the trial court dismissed the claims and we affirm.

Uncommonly tragic facts are alleged. During 1985 Daniel T. Cutler, plaintiff's decedent, became deeply indebted and the value of farmland he owned depreciated drastically. Cutler was a partner of Klass, Whicher & Mishne, a Sioux City law firm.

From early in 1985 Cutler had been unable to devote attention to his practice. Other members of the firm gradually took over his professional responsibilities. By March 1 he was not competent to practice law. From March 7 to March 11 and again from March 15 to March 29 Cutler was a patient in a Sioux City hospital for treatment of severe depression.

Due to his hospitalization the firm placed Cutler on disability status, effective March 1, 1985. On March 29 the firm wrote Mrs. Cutler a letter informing her of the disability status and enclosed Cutler's check for March. The letter explained special provisions in the firm partnership agreement which apply upon incapacity of a partner. Any partner who is unable to carry on duties for a continuous period in excess of two months shall not receive any further draw until returning to work. Draws may be extended at the direction of the firm's management committee, but not in excess of another two months without the consent of the partnership. The letter also stated that it was then premature to know what Dan's future status would be with the firm but that he and all partners would receive a draw at the end of April.

While he was hospitalized Cutler retained A. Frank Baron, a Sioux City lawyer who heads his own firm, to represent him with respect to any problems regarding his tenure with the defendant firm. Baron informed the firm of this fact and requested that any communications in the matter be routed through him.

Upon his release on March 29, rather than having Baron do so, Cutler called his law partner, Marvin Klass, and stated he wished to return to the law firm to work half days in about a week. Klass asked if he could visit with Cutler's doctor. Cutler said it would not be necessary. When Klass again pressed for permission to speak with the doctor, Cutler refused. Klass then told Cutler he would have to take the matter up with the partners and would get back to him.

Following this conversation Klass called a meeting of the firm partners. The meeting was held on Sunday, March 31. The partners decided they would not act upon Cutler's request to return to work until they had spoken with his doctor or obtained other information. Obviously the partners were concerned, not only about Cutler's health, but also the clients whose affairs Cutler would attend. The minutes of that meeting indicate eight partners decided Cutler would not be allowed to return to the office until there was a full partnership meeting to consider the matter.

The following day, April 1, Klass sent a letter to Cutler and attached the minutes of the partnership meeting. The letter stated:

April 1, 1985

Dear Dan:

I am leaving for Seattle today and will not return until around April 10.

Jim Hanks and Will Buell are on trips and I would want them to be present when the partnership makes any major decisions.

Yesterday a partnership meeting was held and a unanimous decision reached concerning your return to the office. A copy of the action taken is enclosed. The consensus of the group was that a complete review and discussion should be held before a final decision is made.

Meanwhile, I am glad you are doing better and hope you continue to make good progress.

Sincerely,

Also on April 1 Klass phoned Willis Buell, another firm member who was vacationing in California, and told him of what had transpired. Buell was concerned that Cutler could misinterpret the letter as an expulsion from the firm. Buell therefore phoned Larry Noll, a close friend and business associate of Cutler, and told him about the forthcoming letter and of his concern that Cutler might misconstrue it. Noll relayed the information to Mrs. Cutler. She then telephoned the law firm and spoke with T.M. Whicher, another firm member. Although Mrs. Cutler alleges Whicher was abrupt with her, she concedes he reassured her that the letter was not notice of Dan's expulsion from the firm. Indeed Cutler was never told by anyone he would be separated from the firm.

On the night following her telephone conversation with Whicher, Mrs. Cutler told her husband he would be receiving the letter. Cutler appeared to accept it calmly. The letter from the firm was found with Cutler's body.

Cutler purchased a shotgun on Tuesday, April 2. The following day he telephoned his wife and asked her to come home for lunch but Mrs. Cutler was prevented by her work from doing so. When Cutler took his own life he left a suicide note which stated: "The farm killed me.... Talked to Tom Patterson regarding malpractice ¹ case--investigation will show there is a good one.... Dump the damn farm."

Plaintiff's petition against the firm was in three counts. Although there was overlapping and mixing among the three, we take count one to assert a general negligence claim, count two asserted a claim for negligent infliction of emotional distress creating an unreasonable risk, and count three to be a claim for intentional infliction of emotional distress (outrageous conduct). The defendant firm filed a motion to dismiss which, as to the first two counts, was sustained by Judge Murray S. Underwood. The third count was dismissed by Judge Tom Hamilton on defendant's subsequent motion for summary judgment.

I. Before addressing these claims in the divisions which follow, we mention the special risks and problems which attend premature attacks on litigation by motions to dismiss. Although we conclude the trial court should be affirmed, we certainly do not recommend the filing of motions to dismiss in litigation, the viability of which is in any way debatable. Neither do we endorse sustaining such motions, even where the ruling is eventually affirmed. Both the filing and the sustaining are poor ideas.

The reasons are clear enough. In the first place, in filing a motion to dismiss, a defendant gives away all the facts because in ruling on the motion well-pled facts are assumed to be true. Berger v. General United Group, 268 N.W.2d 630, 634 (Iowa 1978); Sarvold v. Dodson, 237 N.W.2d 447, 447-48 (Iowa 1976). Combined with this venerable rule is a more recent one. Under notice pleading a suit will survive a motion to dismiss whenever a valid recovery can be gleaned from the pleadings. Lakota Consol. Indep. School v. Buffalo Center/Rake Community Schools, 334 N.W.2d 704, 708 (Iowa 1983).

We recognize the temptation is strong for a defendant to strike a vulnerable petition at the earliest opportunity. Experience has however taught us that vast judicial resources could be saved with the exercise of more professional patience. Under the foregoing rules dismissals of many of the weakest cases must be reversed on appeal. Two appeals often result where one would have sufficed had the defense moved by way of summary judgment, or even by way of defense at trial. From a defendant's standpoint, moreover, it is far from unknown for the flimsiest of cases to gain strength when its dismissal is reversed on appeal. We emphasize that our determination of this appeal is no commendation for filing or sustaining the motion to dismiss.

II. The trial court took count one to be a claim for negligent infliction of emotional distress, an understandable assumption in view of the tangled pleading which sought damages in part on that basis. But, although it was largely obscured by other claims, the count also sought a wrongful death recovery on a pure negligence theory. Under the rule previously explained we must then set aside from our consideration any previously recited facts, many of which were later shown in connection with the motion for summary judgment. Our review of the dismissal of count one must weigh only the facts alleged in the petition.

The petition alleged that Cutler was a partner in defendant law firm where he had practiced eight years. He was under psychiatric care and hospitalized for a mental condition of such seriousness that he contemplated suicide. Although Cutler's psychiatrist told him he could return to work on a half-time basis, defendants refused to allow his immediate return, delaying a decision on the question until a meeting could be had of all partners. The defendant law firm sent a letter to Cutler informing him of the delay. Cutler committed suicide.

Plaintiff relies on Restatement (Second) of Torts sections 303 and 436 (1965). ²

We have no quarrel with the principles outlined in these Restatement sections but are convinced they have no application here.

It is not quite unheard of for the estate of a suicide victim to raise a viable wrongful death claim. Traditionally suicide has been considered an...