Marcus Bros. Textiles, Inc. v. Price Waterhouse, LLP , 350 N.C. 214 ( 1999 )

Chief Justice Mitchell

dissenting.

I do not believe that plaintiff Marcus Brothers Textiles, Inc. (Marcus Brothers) forecast substantial evidence tending to show that defendant Price Waterhouse, LLP (Price Waterhouse) knew that the audited 1992 financial statement of Piece Goods Shops Company, L.P. (Piece Goods) would be provided to Marcus Brothers or a limited group of creditors of which Marcus Brothers was a member. Therefore, I would reverse the decision of the Court of Appeals and remand this case to the trial court for reinstatement of summary judgment in favor of defendant Price Waterhouse. Accordingly, I respectfully dissent from the decision of the majority.

The “actual knowledge” standard controlling an accountant’s liability to a third party non-client for negligent misrepresentation of the financial statements of the accountant’s client was established by this Court in Raritan River Steel Co. v. Cherry, Bekaert & Holland, 322 N.C. 200, 367 S.E.2d 609 (1988). In adopting the actual knowledge standard, this Court expressly rejected the “reasonably foreseeable” standard, “because it would result in liability more expansive than an accountant should be expected to béar.” Id. at 211, 367 S.E.2d at 615. Therefore, we have rejected the notion that an accountant’s liability may be extended in cases such as the present case to all persons that the accountant could reasonably foresee might obtain and rely on his work. Thus, the proper standard is not what the accountant reasonably should have known, but what the accountant in fact knew.

In adopting the actual knowledge standard in Raritan, this Cqurt expressly relied upon the rationale of Section 552 of the Restatement (Second) of Torts. We explained that rationale as follows:

[A]n accountant who audits or prepares financial information for a client owes a duty of care not only to the client but to any other person, or one of a group of persons, whom the accountant or his client intends the information to benefit; and that person reasonably relies on the information in a transaction, or one substantially similar to it, that the accountant or his client intends the information to influence. If the requisite intent is that of the client and not the accountant, then the accountant must know of his client’s intent at the time the accountant audits or prepares the information.

Id. at 210, 367 S.E.2d at 614 (emphasis added). We also explained in Raritan that if an accountant

knows at the time he prepares his report that specific persons, or a limited group of persons, will rely on his work, and intends or knows that his client intends such reliance, his duty of care should extend to them.

Id. at 215, 367 S.E.2d at 618 (emphasis added). Here, no evidence whatsoever was forecast tending to show that Price Waterhouse itself intended to influence plaintiff Marcus Brothers. Therefore, the issue presented by this case is whether Price Waterhouse knew of Piece Goods’ intent to provide Marcus Brothers with the 1992 financial statement for the purpose of influencing Marcus Brothers, or a limited group including Marcus Brothers, in the transactions at issue in this case or in substantially similar transactions. Id. I find nothing in the evidence to support a reasonable fact finder in finding that defendant Price Waterhouse possessed such actual knowledge at the time it performed the work in question for Piece Goods.

At most, the evidence forecast before the trial court and set forth by the majority in its opinion here might support a finding that Price Waterhouse could reasonably have foreseen that Marcus Brothers or an indeterminate group of persons including Marcus Brothers would rely on its work and that Piece Goods intended such reliance. However, the forecast of evidence relied upon by the majority does no more than raise suspicion or conjecture as to the determinative issue before this Court — whether defendant Price Waterhouse actually knew that Marcus Brothers or a limited group including Marcus Brothers would rely on its work and that its client Piece Goods intended such reliance. Evidence “must do more than raise a suspicion, conjecture, guess, surmise, or speculation as to the pertinent facts in order to justify its submission to the jury.” Jenrette Transp. Co. v. Atlantic Fire Ins. Co., 236 N.C. 534, 539, 73 S.E.2d 481, 485 (1952); see also Roumillat v. Simplistic Enters., Inc., 331 N.C. 57, 68, 414 S.E.2d 339, 345 (1992). Even if it is assumed arguendo that defendant Price Waterhouse had knowledge from which it could reasonably have foreseen that its work would be relied on by an unlimited group of potential trade creditors of Piece Goods, this fact would not suffice to defeat defendant Price Waterhouse’s motion for summary judgment.

I recognize that ordinarily the Restatement of Torts is secondary authority at best, as it is not the law of North Carolina. However, in Raritan this Court adopted the standard required by the Restatement (Second) of Torts § 552 as a part of the common law of North Carolina. Therefore, the Commentary to Section 552 and the included examples are unusually persuasive authority regarding the knowledge required on the part of an accountant in order for the accountant to have a duty to those not his clients. In this regard, illustration 10 under comment h provides as follows:

A, an independent public accountant, is retained by B Company to conduct an annual audit of the customary scope for the corporation and to furnish his opinion on the corporation’s financial statements. A is not informed of any intended use of the financial statements; but A knows that the financial statements, accompanied by an auditor’s opinion, are customarily used in a variety of financial transactions by the corporation and that they may be relied upon by lenders, investors . . . and the like .... In fact B Company uses the financial statements and accompanying auditor’s opinion to obtain financial statements and accompanying auditor’s opinion to obtain a loan from X Bank. Because of A’s negligence, he issues an unqualifiedly favorable opinion upon a balance sheet that materially misstates the financial position of B Company, and through reliance upon it X Bank suffers pecuniary loss. A is not liable to X Bank.

Restatement (Second) of Torts § 552, cmt. h, illus. 10 (1977), quoted in Raritan, 322 N.C. at 215 n.2, 367 S.E.2d at 617 n.2. None of the evidence relied upon by the majority tends to establish that Price Waterhouse had more knowledge of Piece Goods’ plans than that illustrated in the above example.

The 1989 internal memorandum of Price Waterhouse relied upon by the majority merely stated that Price Waterhouse had “historically reported on the financial statements of’ Piece Goods and that “vendors and factors” were accustomed to receiving Piece Goods’ financial statements. Giving this memorandum every possible reasonable inference in favor of plaintiff, it still tends to show only that four years later, Price Waterhouse might reasonably have foreseen that an indeterminate group of outside vendors and creditors would receive the 1992 statement it prepared for Piece Goods. Piece Goods’ 1993 bankruptcy filing listed several hundred creditors, a group which could not reasonably be found to be a limited group of which Marcus Brothers was a member. The information contained in the 1989 memorandum, even when taken in the light most favorable to plaintiff, could not reasonably be found to identify the type of limited group required to meet the standard established by Raritan and the Restatement. See Venturtech II v. Deloitte Haskins & Sells, 790 F. Supp. 576, 583 (E.D.N.C. 1992) (similar internal memorandum created in connection with a prior audit held insufficient to establish a “limited group of persons whom [the auditor] knew would rely on its work” or to establish the state of the auditor’s knowledge four years after the memorandum was prepared), aff’d sub nom. Heritage Capital Corp. v. Deloitte, Haskins & Sells, 993 F.2d 228 (4th Cir. 1993), cert. denied, 511 U.S. 1051, 128 L. Ed. 2d 338 (1994); Bank of New Orleans & Trust Co. v. Monco Agency Inc., 719 F. Supp. 1328 (E.D. La. 1989) (auditor’s knowledge of use of an earlier audit held insufficient to establish such knowledge as to later audit, and the auditor’s knowledge that its report was being given to one bank coupled with the client’s request for fifty copies of the audit was insufficient to establish knowledge that the audit would also be given to the plaintiff bank), aff’d sub nom. First Nat’l Bank of Commerce v. Moneo Agency Inc., 911 F.2d 1053 (5th Cir. 1990). To conclude, as the majority does here, that the 1989 memorandum is sufficient to support a finding that Price Waterhouse knew that plaintiff Marcus Brothers was a member of a “limited group” to whom copies of the 1992 financial statement would be provided is to conclude that an auditor who knows that his client provides financial statements to some unspecified.and indeterminate group may be held hable to all of the client’s present or future creditors without limitation. The effect is to hold accountants such as defendant Price Waterhouse liable to all “reasonably foreseeable” recipients of its audit reports, a result directly contrary to the standard of liability established in Raritan and the Restatement.

The deposition testimony of Karen C. Frazier, an audit manager of the 1992 Piece Goods audit, is of even less help to plaintiff. She testified only as to general business practices in the industry of which Piece Goods was a part. She stated in response to a question that, “[a]s far as having an audited financial, you have an outside opinion on the financial statements that you have prepared internally to be used by the management of the company and possibly outsiders.” When asked whether such “outsiders” could include trade creditors, she responded, “[i]t could.” When asked whether in Piece Goods’ situation outsiders would include suppliers of material, inventory and patterns, she replied that “[i]t could; yes.” Given any fair construction, Ms. Frazier’s deposition testimony tended to show merely that businesses in the same industry as Piece Goods “could” “possibly” provide their audited financial statements to an indeterminate and unspecified group of outsiders. Again, such evidence would at best support suspicion, speculation or conjecture as to what defendant Price Waterhouse actually knew.

The fact that plaintiff Marcus Brothers was included on a held check list also tends to show only that it was one of an indeterminate group of potential creditors. No evidence was forecast which could do more than create suspicion, speculation or conjecture as to whether Price Waterhouse actually knew that Piece Goods intended to provide the 1992 financial statements to Marcus Brothers, or to a limited group of which Marcus Brothers was a member, for the purpose of influencing a specific transaction or one substantially similar to any such specific transaction. This being the case, the trial court properly granted summary judgment for defendant Price Waterhouse.

In Raritan, this Court carefully considered the views of a legal scholar and jurist of extraordinary renown, Judge Cardozo of the New York Court of Appeals.

It is instructive that Judge Cardozo, the architect of reasonable foreseeability as the touchstone for products liability, MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916), declined to adopt the same standard for accountants’ liability in Ultramares. Judge Cardozo distinguished accountants from manufacturers because of the potential for excessive accountants’ liability. He wrote that if accountants could be held liable for negligence by those who were not in privity, or nearly in privity, accountants would face “liability in an indeterminate amount for an indeterminate time to an indeterminate class.” Ultramares Corp. v. Touche, Niven & Co., 255 N.Y. [170,] 179-80, 174 N.E. [441,] 444 [(1931)]. Because of this potential for inordinate liability Judge Cardozo concluded, as do we, that accountants should be held liable to a narrower class of plaintiffs than the class embraced by the reasonable foreseeability test.

Raritan, 322 N.C. at 213-14, 367 S.E.2d at 616-17. Although I am certain beyond all doubt that the majority has attempted in good faith to apply the actual knowledge test required by Raritan, its decision in this case allows a forecast of evidence to suffice which at best meets the reasonably foreseeable standard expressly rejected in Raritan. The result is to subject accountants such as Price Waterhouse to liability to an indeterminate class, for an indeterminate time, in an indeterminate amount, despite Judge Cardozo’s warning and this Court’s expressly stated desire in Raritan to avoid any such result. Therefore, I must respectfully dissent.

Justice Parker joins in this dissenting opinion.