Fullmer v. Wohlfeiler & Beck

905 F.2d 1394, 1990 WL 77646
CourtCourt of Appeals for the Tenth Circuit
DecidedJune 12, 1990
DocketNo. 86-1167
StatusPublished
Cited by22 cases

This text of 905 F.2d 1394 (Fullmer v. Wohlfeiler & Beck) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fullmer v. Wohlfeiler & Beck, 905 F.2d 1394, 1990 WL 77646 (10th Cir. 1990).

Opinion

HOLLOWAY, Chief Judge.

This is a diversity action asserting claims of negligent misrepresentation, negligence and fraud brought by investors in Inter-mountain Giftmakers, a failed business, against Giftmakers’ auditors. After a bench trial, the district judge entered detailed findings, conclusions and a judgment for the investors-plaintiffs, Fullmer, Moody and Kennard, on the negligence and negligent misrepresentation claims for a portion of the damages sought. He found no basis for any claim of fraud by plaintiffs against the defendants. The auditors-defendants, Wohlfeiler & Beck, and defendant George Beck, appeal.

I

Following is a summary of the trial judge’s detailed findings of fact and conclusions of law. The findings and conclusions will be developed further as required in treating the issues raised.

During the mid-1970s the business that eventually became Giftmakers began manufacturing and wholesaling gifts. Gift-makers was a cottage industry which manufactured components and sold them to customers who then assembled them in their homes and sold the finished gifts to retailers. After sales dramatically increased during the period from 1976 to 1978, Giftmakers’ business declined and it eventually dissolved in 1983. Fullmer, Moody and Kennard, as shareholders and creditors, sued the auditors, Wohlfeiler & Beck, for large losses resulting from transactions between the plaintiffs and Giftmak-ers.

The transactions in question occurred from 1976 through 1983 when Fullmer, Moody and Kennard invested money in Giftmakers and made substantial loans to the company. Fullmer and Moody also became directors of Giftmakers. In making his findings on liability, the trial judge divided these transactions into four time periods: (1) transactions entered into prior to August 8, 1979, when the first unaudited financial statements for December 1978 were furnished by defendants; (2) transactions that took place after the furnishing of [1396]*1396the first unaudited information on August 8, 1979, and up until June 6, 1980; (3) the transactions after June 6, 1980, and up until March 1, 1983, when defendants sent audited financial statements of Giftmakers; and (4) transactions after March 1, 1983, when the last audit information defendants furnished related to a time period some 14 months earlier, and at which point the court found that reliance on the old accounting information was unreasonable.

The trial judge found no basis for any claim of fraud by the plaintiffs against the defendants. The judge also rejected any claims of knowing or reckless misrepresentation, or even gross negligence; thus no punitive damages were allowed. With respect to the claims based on negligent misrepresentation and negligence, the court did find the defendants liable for losses during the third period suffered on investments, loans and guaranties which the plaintiffs made after defendants issued the audited financial statements. The defendants issued qualified audit opinions on Giftmakers’ financial statements for the years ending December 31, 1979, 1980 and 1981. The trial judge found that these financial statements did not conform to generally accepted accounting principles and that the defendants did not perform their audits in accordance with generally accepted auditing standards.

The trial judge rejected the defense that the plaintiffs had been guilty of negligence which caused or contributed to the plaintiffs’ losses. The letter transmitting his findings and conclusions stated that the judge had not found any of the plaintiffs guilty of contributory or comparative negligence that would reduce their recovery. This was based on his opinion that the plaintiffs’ negligence in an accounting malpractice case is only a defense, or the basis for an offset, where the plaintiffs’ conduct has contributed to the accountant’s failure to perform his work or his failure to furnish accurate accounting information. He said the plaintiffs were imprudent and negligent in the manner in which they handled a number of these transactions (e.g., obtaining no security and on occasion not even obtaining notes, etc.), but that none of that conduct had any relevance to the defendants’ responsibility to furnish accurate accounting information.

On appeal, the defendants argue that the judgment should be reversed or in any event the case should be remanded for consideration of the defendants’ comparative negligence defense. The defendants-appellants do not challenge the trial judge’s finding of negligence in making the audits.

II

The Comparative Negligence Defense

Defendants Wohlfeiler & Beck contend that the trial judge erred in failing to apply comparative fault principles to reduce the plaintiffs’ damages by the proportion of fault attributable to them. They point to assertions of the defense in their pleadings, and their proposed findings and conclusions presented to the trial judge.

The gist of their argument is that comparative fault is a firmly established principle in Utah common law, and refer to the enactment of Utah’s comparative negligence statute, UTAH CODE ANN. § 78-27-37 (repealed effective April 28, 1986). They maintain that the Utah Supreme Court has applied comparative fault principles that now appear in the codification of the Liability Reform Act of 1986, UTAH CODE ANN. § 78-27-37, et seq. (effective April 28, 1986).

As noted earlier, the trial judge rejected the comparative negligence defense. In his conclusions of law the judge stated (pp. 37-38):

7. Defendants are not entitled to assert a defense of contributory or comparative negligence against plaintiffs. The evidence establishes that plaintiffs passively relied on defendants’ audited financial reports and there is no evidence that plaintiffs’ negligence contributed to defendants’ failure to properly prepare the audited financial reports or in any way prevented them from reporting the true financial condition of IGM in those audited reports.

[1397]*1397Defendants say the court apparently based its ruling on National Surety Corporation v. Lybrand, 256 A.D. 226, 9 N.Y.S.2d 554 (1st Dept.1939), which stated that the defense of negligence of the employer only applies when the plaintiffs negligence contributed to the accountant’s failure to perform his contract. This was a case decided in a contributory negligence context, which is not the doctrine now in Utah. Therefore, defendants say that Devco Premium Finance Co. v. North River Insurance Co., 450 So.2d 1216 (Fla.Ct.App.1984), applies; that the Devco opinion correctly declined to adopt the holding in the National Surety case because it had been decided in a contributory negligence context; and that the plaintiffs should not be allowed to recover for losses which they could have avoided by the exercise of reasonable care, according to the Devco opinion.

As the factual premise for their argument on comparative negligence, the defendants argue that had Fullmer and Moody given the business such attention as an ordinarily discreet businessman would have given to his own concerns, they would have discovered the precarious financial situation of Giftmakers and would have avoided or reduced many of their losses. Further they say that Fullmer, Moody and Kennard each handled their transactions with Gift-makers in a negligent and careless manner, obtaining no security for loans, paying far more than book value for shares of stock, etc.

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Fullmer v. Wohlfeiler & Beck
905 F.2d 1394 (Tenth Circuit, 1990)

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Bluebook (online)
905 F.2d 1394, 1990 WL 77646, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fullmer-v-wohlfeiler-beck-ca10-1990.