Marcus Bros. Textiles, Inc. v. Price Waterhouse, LLP

498 S.E.2d 196, 129 N.C. App. 119, 1998 N.C. App. LEXIS 428
CourtCourt of Appeals of North Carolina
DecidedApril 7, 1998
DocketCOA97-435
StatusPublished
Cited by5 cases

This text of 498 S.E.2d 196 (Marcus Bros. Textiles, Inc. v. Price Waterhouse, LLP) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marcus Bros. Textiles, Inc. v. Price Waterhouse, LLP, 498 S.E.2d 196, 129 N.C. App. 119, 1998 N.C. App. LEXIS 428 (N.C. Ct. App. 1998).

Opinions

EAGLES, Judge.

I.

We first consider whether the trial court erred in granting defendant’s motion for summary judgment on the claim of negligent misrepresentation because plaintiff’s evidence was sufficiently “substantial” to entitle plaintiff to have a jury consider the question of defendant’s knowledge that Piece Goods intended that plaintiff would rely on the financial statements in plaintiff’s decision to extend credit.

Plaintiff argues that genuine issues of material fact remain regarding the requisite knowledge element and that summary judgment should be reversed. Plaintiff contends that their evidence, and the reasonable inferences to which it gives rise, show that plaintiff was a member of “a limited group of persons” whom defendant knew, at the time Price Waterhouse audited Piece Goods’ 1992 financial statements, that Piece Goods intended to provide copies of those statements for the purpose of “influencing]” plaintiff in its decision. to extend credit. Restatement (Second) of Torts § 552 at 2(a). Plaintiff argues that the actual identity of plaintiff need not have been known by defendant when the defendant prepared the information. It is sufficient that the “maker supplies the information for repetition to a certain group or class of persons and that the plaintiff proves to be one of them, even though the maker never had heard of him by name when the information was given.” Restatement (Second) of Torts § 552 cmt. h (1977).

Plaintiff first cites as evidence an internal memorandum of defendant dated 25 September 1989 and initialed by Robert A. Smith, a partner at Price Waterhouse who worked on the 1992 audit. The [122]*122memorandum states: “[Price Waterhouse] has historically reported on the financial statements of [Piece Goods] and ... vendors and factors are accustomed to receiving [Piece Goods] financial statements Plaintiff contends that this memorandum shows that defendant knew that Piece Goods regularly furnished its vendors and creditors with financial statements. Accordingly, plaintiff contends that since Piece Goods was in a business where acquiring inventory on credit is standard operating procedure, and since by 1992 defendant had been Piece Goods’ accountant and financial adviser for six years, a factfinder could logically conclude that defendant knew why Piece Goods regularly gave creditors its financial statements, namely, to influence their decisions to extend credit.

Plaintiff next cites deposition testimony from Karen Frazier, the Price Waterhouse employee who was manager of the 1992 audit. Frazier testified that audited financial statements are “to be used by the management of the company and possibly outsiders,” that trade creditors like plaintiff “could” be included among the “outsiders,” and that in Piece Goods’ situation, the outsiders “could” include “suppliers of material and inventory patterns.”

Plaintiff next cites Piece Goods’ 1993 bankruptcy filing which indicated that 43 trade creditors received copies of audited financial reports within the two years immediately preceding the bankruptcy filing. Plaintiff contends that this supports “the common sense inference that as Piece Goods’ accountant since 1986, Price [Waterhouse] could not have been unaware” that Piece Goods furnished its audited financial statements to creditors in the regular course of its business.

Finally, plaintiff cites evidence that the sixth largest check on a list of 50 “held checks” in the 1992 Piece Goods’ audit file was a check on Piece Goods’ account payable to plaintiff in the amount of $291,337.78. Plaintiff contends that this evidence supports the inference that defendant knew that plaintiff was a member of the group identifiable as Piece Goods’ major creditors.

Plaintiff argues that the evidence, when viewed in the light most favorable to plaintiff, creates a genuine issue of fact regarding the requisite element of knowledge as required by the Restatement and Raritan River Steel Co. v. Cherry, Bekaert & Holland, 322 N.C. 200, 367 S.E.2d 609 (1988), appeal after remand, 101 N.C. App. 1, 398 S.E.2d 889 (1990), rev’d on other grounds, 329 N.C. 646, 407 S.E.2d 178 (1991). Accordingly, plaintiff argues that the summary judgment order should be reversed.

[123]*123Defendant first argues that North Carolina law limits an accountant’s liability for negligent misrepresentation to those persons the accountant intends to be able to rely on the information, or those persons the accountant knows his client intends to be able to rely on the information. Defendant maintains that our Supreme Court has specifically rejected the “reasonably foreseeable” test in Raritan. Accordingly, defendant argues that it is not enough for plaintiff to show that defendant “should have known” that Piece Goods “might” provide the financial statements to trade creditors like plaintiff. Instead, defendant contends that plaintiff must show that defendant “knew” that Piece Goods intended for trade creditors to rely on the 1992 financial statements in extending credit.

Defendant maintains that plaintiff has not forecast sufficient evidence to show that defendant had the requisite knowledge at the time of the audit. Defendant argues that the memorandum cited by plaintiff “establishes, at most, that Price Waterhouse knew that Piece Goods’ audited financial statements were customarily used in a variety of financial transactions by the company and that the financial statements may have been relied upon by lenders, creditors and others in a variety of transactions.” Defendant maintains that this evidence is not sufficient to satisfy the requisite element of knowledge and to extend liability for negligent misrepresentation to defendant. See Raritan, 322 N.C. at 215 n.2 ("citing Restatement (Second) of Torts § 552 cmt. h Example 10).

We hold that there is a genuine issue of material fact concerning whether Price Waterhouse knew that Piece Goods supplied the audited financial statements to its creditors in order to buy on credit, and whether Price Waterhouse knew that plaintiff would be included in a limited group to whom the audited financial statement would be supplied. In Raritan, our Supreme Court adopted the standard set forth in the Restatement (Second) of Torts § 552 (1977) for determining the scope of accountant’s liability to persons other than the client for whom an audit was prepared. Our Supreme Court recognized “that liability should extend not only to those with whom the accountant is in privity or near privity, but also to those persons, or classes of persons, whom he knows and intends will rely on his opinion, or whom he knows his client intends will so rely.” Raritan, 322 N.C. at 214, 367 S.E.2d at 617. The Court further determined that:

[t]he Restatement’s text does not demand that the accountant be informed by the client himself of the audit report’s intended use. [124]*124The text requires only that the auditor know that his client intends to supply information to another person or limited group of persons. Whether the auditor acquires this knowledge from his client or elsewhere should make no difference.

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Bluebook (online)
498 S.E.2d 196, 129 N.C. App. 119, 1998 N.C. App. LEXIS 428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marcus-bros-textiles-inc-v-price-waterhouse-llp-ncctapp-1998.