Performance Electric, Inc. v. CIB Bank

864 N.E.2d 779, 371 Ill. App. 3d 1037

• Court: Appellate Court of Illinois
• Decided: February 28, 2007
• Docket: 1-06-1145
• Status: Published

Opinions

JUSTICE GREIMAN

delivered the opinion of the court:

Plaintiffs, Mary Campanile and Vito Campanile, Sr., appeal from an order of the trial court dismissing with prejudice their complaint for breach of contract in favor of defendant, CIB Bank, pursuant to section 2 — 615 of the Code of Civil Procedure (Code) (735 ILCS 5/2— 615 (West 2004)). On appeal, plaintiffs contend that they had standing to bring a breach of contract action against defendant. In addition, plaintiffs contend that their complaint sufficiently alleged facts establishing that they suffered damages as a result of defendant’s breach of its duty of good faith and fair dealing. For the following reasons, we affirm.

Plaintiff Mary Campanile was the sole shareholder and president of Performance Electric, Inc. (Performance). In 1998, Performance and defendant entered into a loan agreement, promissory note and commercial security agreement. In conjunction therewith, plaintiffs individually executed personal guaranties for all of Performance’s obligations under the several documents. In 2001, following an annual audit, defendant discovered that Performance was in financial distress. Specifically, defendant learned that, inter alia, Performance had neglected to satisfy employee withholding payments that it owed to the Internal Revenue Service (IRS). Thereafter, although Performance had not defaulted on its loan payments, defendant placed a hold on Performance’s operating account and instructed a number of Performance’s clients to send outstanding payments directly to the bank. The parties subsequently held a meeting on April 4, 2001, to discuss the situation and agreed on a future course of action. The results of that meeting were summarized in a letter written by defendant the next day, April 5, 2001, which provided that: (1) defendant would rescind the prior directive for outstanding client payments; (2) defendant would remove the hold on Performance’s operating account; (3) Performance would provide updated financial information and monthly financial information thereafter; and (4) defendant and Performance would meet again during the week of April 23, 2001. Then, on April 9, 2001, despite receiving Performance’s updated financial information, defendant advised Performance that it was terminating their relationship and exercising its setoff rights pursuant to the terms of their agreements.

On December 8, 2005, plaintiffs filed an amended complaint¹ for breach of contract, alleging that defendant owed them an implied duty of good faith and fair dealing as guarantors to the agreements (i.e., the original loan agreement and the subsequent “letter agreement”). Further, plaintiffs claimed defendant breached that duty, in direct contravention of terms of the letter agreement of April 4, 2001, by: (1) failing to act reasonably in securing Performance’s physical assets; (2) failing to act reasonably in collecting Performance’s accounts receivable; (3) failing to defer action on Performance’s account; and (4) failing to remove the hold on Performance’s account. The complaint additionally alleged that defendant’s breach caused Performance to file for bankruptcy, thereby making plaintiffs personally responsible for some of Performance’s debts. As a result, plaintiffs were forced to file personal bankruptcies and had their credit “destroyed.” Further, Mary Campanile, in her capacity as a “responsible party in the corporation,” remained liable to the IRS for Performance’s outstanding debts. The trial court ultimately granted defendant’s motion to dismiss plaintiffs’ complaint with prejudice. This timely appeal followed.

We review de novo whether the trial court erred in dismissing plaintiffs’ complaint. Chandler v. Illinois Central R.R. Co., 207 Ill. 2d 331, 349 (2003). A section 2 — 615 motion to dismiss attacks the legal sufficiency of a complaint by alleging that the pleading is deficient on its face. Chandler, 207 Ill. 2d at 348. In our review, we must determine whether the allegations in the complaint, viewed in a light most favorable to plaintiffs, are sufficient to state a cause of action upon which relief may be granted. Chandler, 207 Ill. 2d at 348. Applying this liberal standard, we determine that plaintiffs failed to sufficiently state a claim for breach of contract.

Plaintiffs contend that they have standing to assert the underlying complaint because they experienced personal damages beyond that experienced by Performance as a result of defendant’s breach of good faith and fair dealing. Defendant responds that plaintiffs do not have standing to assert their complaint because any injury they endured was merely derivative to the losses experienced by Performance. In the alternative, defendant argues that it did not owe plaintiffs, as guarantors to the agreements, a duty of good faith and fair dealing.

In order to assert an affirmative claim against a lender, a guarantor must establish that he suffered a direct injury as a result of the lender’s alleged breach against the principal, which is independent from and not merely derivative of the resulting injury suffered by the principal. Northern Trust Co. v. VIII South Michigan Associates, 276 Ill. App. 3d 355, 363 (1995) (loss of investment in a principal is a derivative injury and will not provide standing for a guarantor); see First National Bank of Cicero v. Sylvester, 196 Ill. App. 3d 902, 913 (1990) (in dicta, the court announced that a guarantor who suffers a “direct injury” may have standing to pursue his own claim); see also United Air Lines, Inc. v. ALG, Inc., 916 F. Supp. 793, 796 (N.D. Ill. 1996) (a guarantor stands in the shoes of a contingent creditor; therefore, as with creditors, guarantors cannot recover separately for an indirect injury), citing Mid-State Fertilizer Co. v. Exchange National Bank of Chicago, 877 F.2d 1333, 1336 (7th Cir. 1989) (a guarantor may not pursue his own remedy when he suffers an indirect injury).

In the instant case, plaintiffs brought their claim under the loan and letter agreements between Performance and defendant, not the guaranty. Although not a party to those agreements, plaintiffs argue that they had standing to bring their claim as guarantors. Plaintiffs attempt to distinguish their injury from the general loss of investment in Performance by arguing that they suffered independent and distinct damages. Plaintiffs concede that those damages resulting from repayment of Performance’s loan do not constitute the requisite injury necessary to assert a claim as guarantors; however, plaintiffs argue that Mary Campanile’s resulting liability to the IRS for Performance’s unpaid federal withholdings was a sufficiently independent and direct injury to grant standing. We disagree. Performance’s inability to satisfy its debts under the agreements directly caused plaintiffs’ injuries because, as guarantors, they remained liable for the outstanding debts. We are reminded that guarantors are similarly situated to other groups, such as shareholders, limited partners and creditors, none of which can proceed individually for alleged breaches against the principal. Northern Trust Co., 276 Ill. App. 3d at 363; Mid-State Fertilizer Co., 877 F.2d at 1335-36. In regard to the outstanding IRS liability, Mary Campanile was responsible to the IRS in her capacity as president of Performance, not as a guarantor to the agreements. As a result, Mary Campanile would have remained liable for the IRS debts even if she had not been a personal guarantor. Consequently, the resulting IRS liability cannot confer standing as a guarantor.

Because we found that plaintiffs do not have standing to assert an affirmative cause of action against defendant, we need not address whether defendant owed plaintiffs a duty of good faith and fair dealing. We note, however, that had this lawsuit been brought by defendant under the guaranty and plaintiffs asserted an affirmative defense, we nevertheless would have determined that plaintiffs failed to sufficiently state a cause of action. Review of the complaint demonstrates that plaintiffs ambiguously argued that defendant breached its duty of good faith and fair dealing by failing to act “reasonably.” Consequently, under those circumstances, the complaint would not have survived a motion to dismiss.

Accordingly, we affirm the judgment of the circuit court of Cook County.

Affirmed.

KARNEZIS, J. concurs.

1 Performance was a plaintiff in the initial complaint; however, the complaint was dismissed, in part, because Performance was a debtor in a federal bankruptcy action and all potential claims were owned by the bankruptcy estate. Defendant purchased the rights to Performance’s potential claims and therefore Performance was not a party to the amended complaint or the instant appeal.