Kunau v. Pillers, Pillers & Pillers, P.C.

• Court: Iowa Court of Appeals
• Writing for the Court: Heard by OXBERGER; SCHLEGEL; DONIELSON; OXBERGER, C.J., and SNELL; SACKETT; SNELL; OXBERGER
• Citation: Kunau v. Pillers, Pillers & Pillers, P.C., 404 N.W.2d 573 (Iowa App. 1987)
• Decision Date: 25 February 1987
• Docket Number: No. 85-1699,85-1699
• Parties: David A. KUNAU, Plaintiff-Appellant, v. PILLERS, PILLERS & PILLERS, P.C., Defendant-Appellee.

Page 573

404 N.W.2d 573

David A. KUNAU, Plaintiff-Appellant, v. PILLERS, PILLERS & PILLERS, P.C., Defendant-Appellee.

No. 85-1699.

Court of Appeals of Iowa.

Feb. 25, 1987.

Stephen P. Wing of Dwyer & Wing, Davenport, for plaintiff-appellant.

John P. Murphy of Holleran, Shaw, Murphy & Stoutner, Clinton, for defendant-appellee.

Heard by OXBERGER, C.J., and SNELL and SCHLEGEL, JJ.

SCHLEGEL, Judge.

The plaintiff sued his former attorney alleging legal malpractice and related causes of action. The district court granted the defendant a pretrial summary judgment as to some portions of the petition and a jury returned a verdict for the defendant on the remaining portions of the petition. The plaintiff has appealed from the resulting judgment. We affirm.

In late 1980 or early 1981 David Kunau contacted attorney James Pillers, seeking some sort of legal action against Dr. James Miller, who had had an affair with Kunau's wife. On March 3, 1981, attorney Pillers filed an alienation of affections suit against Miller on behalf of David Kunau. However, on April 15, 1981, the Iowa Supreme Court abolished the cause of action for alienation of affections. Fundermann v. Mickelson 304 N.W.2d 790 (Iowa 1981). Opposing counsel moved to dismiss the Kunau suit on the basis of the Fundermann holding; the district court granted this motion and dismissed the lawsuit. Attorney Pillers then filed a second suit against Miller on Kunau's behalf, relying on the same facts and pleading such theories as intentional infliction of emotional distress, interference with contract, and interference with prospective economic advantage. The district court dismissed this second suit on the ground it was precluded under the doctrine of res judicata because of the dismissal of the first suit.

Attorney Pillers appealed on Kunau's behalf from each of these two dismissals. However, in each case the appeal had been preceded by an unsuccessful posttrial motion, and in each case the notice of appeal was timely only as to the ruling on the motion, not as to the dismissal itself. Both appeals were dismissed by the Iowa Supreme Court on the ground the notices of appeal were untimely because the posttrial motions were not the sort of motions which could extend the time for appeal under Iowa Rule of Civil Procedure 179(b). Kunau v. Miller, 328 N.W.2d 529 (Iowa 1983).

On the basis of the preceding facts, David Kunau later filed the present action against attorney Pillers for legal malpractice and related causes of action. The district court granted the defendant's motion for summary judgment as to the legal malpractice claim after deciding that Kunau could not have prevailed in the underlying actions. The district court also granted the defendant a summary judgment as to those parts of the petition alleging intentional or negligent infliction of emotional distress. The district court held that such causes of action are not available in the context of the attorney-client relationship. The only parts of Kunau's petition left after these rulings were divisions alleging that Pillers had negligently accepted employment in a case which he knew or should have known did not constitute a valid cause of action, and that Pillers had breached his employment contract by failing to advise Kunau that he had no valid cause of action. These parts of the petition were tried to a jury, which returned a verdict for Pillers on all propositions submitted.

Kunau contends the district court erred in ruling on the summary judgment motions by concluding, as a matter of law, that Kunau could not have prevailed in the second of the underlying lawsuits against Miller which alleged such theories as intentional infliction of emotional distress, interference with contract, and interference with prospective economic advantage. Kunau asserts the district court erred by holding that the tort of intentional infliction of emotional distress would not have prevailed against Miller because the element of outrageousness was absent. Kunau also asserts the district court erred by apparently concluding, although without expressly so holding, that Kunau could not have prevailed against Miller on the other theories stated in the second suit against Miller.

Kunau also contends the district court erred in ruling on the summary judgment motions, by holding that the torts of intentional and negligent infliction of emotional distress are not available in the context of the attorney-client relationship.

Kunau's remaining issues relate to events which occurred during the trial of the limited portions of the petition which survived the summary judgment motions.

During trial the defendant presented a lawyer as an expert witness to testify that James Pillers had conformed to the applicable standard of care. This witness had formed his opinion in part by reading discovery depositions made by David Kunau, Kunau's wife, and Pillers. These discovery depositions were admitted into evidence as part of the foundation for the expert testimony. On appeal Kunau contends the admission of these discovery depositions was erroneous, where the deponents had all testified at trial.

Kunau also contends the evidence at trial did not support the jury's verdict. He asserts the evidence established that Pillers had breached his employment contract.

Finally, Kunau contends the district court erred by instructing the jury that Kunau could recover for breach of contract no more than the amount of a retainer given to Pillers. Kunau asserts that Piller's breach of his employment contract also resulted in consequential damages for emotional distress and frustration. He argues the jury should have been instructed that such damages, in addition to a mere refund of the retainer, were available to Kunau.

In reviewing the grant of summary judgment under Iowa Rule of Civil Procedure 237(c), the question is whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. Suss v. Schammel, 375 N.W.2d 252, 254 (Iowa 1985); Brown v. Monticello State Bank, 360 N.W.2d 81, 83-84 (Iowa 1984). It can be fatal to the party resisting the summary judgment motion to rely alone on a perceived weakness in the movant's contentions. Suss v. Schammel, 375 N.W.2d at 254. The resisting party must set forth specific facts showing there is a genuine issue for trial. Iowa Civil Rights Commission v. Massey-Ferguson, Inc., 207 N.W.2d 5, 8 (Iowa 1973); Iowa R.Civ.P. 237(e). Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. Adam v. Mt. Pleasant Bank & Trust Co., 355 N.W.2d 868, 872 (Iowa 1984).

We agree with the trial court that the defendant met the burden of showing no issue of material fact existed relating to the three theories of tort liability advanced by the plaintiff. The Iowa Supreme Court has adopted the general principle that:

... a client who seeks to recover against his or her lawyer in a malpractice action based upon negligent handling of a lawsuit for money damages must not only prove negligence but must also prove that, absent the lawyer's negligence, the underlying suit would have been successful.

Baker v. Beal, 225 N.W.2d 106, 109 (Iowa 1975); Koeller v. Reynolds, 344 N.W.2d 556, 558 (Iowa Ct.App.1983). Even assuming that the defendant acted negligently in not filing timely notices of appeal, see Kunau v. Miller, 328 N.W.2d 529, 531, we agree with the trial court that even absent such negligence, the underlying suit would not have been successful.

The first cause of action which plaintiff claims may have been successful against the defendant is the tort of intentional infliction of emotional distress. Addressing this issue, the district court said that even if everything asserted by plaintiff was true, those facts did not present that degree of outrageousness going beyond all possible bounds of decency which is regarded utterly intolerable in a civilized community. We agree. In Vinson v. Linn-Mar Community School District, 360 N.W.2d 108, 118 (Iowa 1984), our supreme court identified the elements of the tort of intentional infliction of emotional distress:

(1) Outrageous conduct by the defendant;

(2) The defendant's intentional causing, or reckless disregard of the probability of causing emotional distress;

(3) Plaintiff suffering severe or extreme emotional distress; and

(4) Actual and proximate causation of the emotional distress by the defendant's outrageous conduct.

It is for the court to determine in the first instance whether the relevant conduct may reasonably be regarded as outrageous. Roalson v. Chaney, 334 N.W.2d 754, 756 (Iowa 1983). In order to find outrageousness, the court must determine if the conduct is "so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Harsha v. State Savings Bank, 346 N.W.2d 791, 801 (Iowa 1984). It is not enough to show that the defendant has acted with tortious intent or that defendant has intended to inflict emotional distress, or that his conduct could be characterized by "malice," or by a degree of aggravation that would entitle the plaintiff to punitive damages for another tort. Vinson v. Linn-Mar Community School District, 360 N.W.2d at 118. Here, the trial court looked at the relevant conduct and determined that, as a matter of law, Dr. Miller's conduct was not outrageous. There are adequate grounds for such a finding. The relationship between Mrs. Kunau and Dr. Miller lasted for a number of years. The Kunaus are still married. As Judge Briles noted, adultery is no longer a crime in Iowa and marriage dissolutions are easily obtained. We do not say that sexual relations between professional and patient would never give rise to a finding of outrageous conduct. We only find that the facts of this case could not support a...