Quad City Bank & Trust v. Jim Kircher & Associates, P.C.

804 N.W.2d 83, 2011 Iowa Sup. LEXIS 75, 2011 WL 4407226
CourtSupreme Court of Iowa
DecidedSeptember 23, 2011
Docket09–1151
StatusPublished
Cited by41 cases

This text of 804 N.W.2d 83 (Quad City Bank & Trust v. Jim Kircher & Associates, P.C.) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Quad City Bank & Trust v. Jim Kircher & Associates, P.C., 804 N.W.2d 83, 2011 Iowa Sup. LEXIS 75, 2011 WL 4407226 (iowa 2011).

Opinion

WIGGINS, Justice.

A bank attempted to prove an accounting negligence claim by using an expert witness to testify regarding the accountant’s audit of a company. The district court refused to allow the expert to testify as to generally accepted Certified Public Accountant (CPA) auditing standards, whether the accountant breached those standards, and causation. The district court left open the question of whether the expert could testify as to the accountant’s work papers. At trial, the bank made an offer of proof as to the work papers, but did not move to introduce them, so the court never ruled on their admissibility. The bank received an adverse jury verdict and appealed. We transferred the case to the court of appeals. The court of appeals reversed the district court and remanded for a new trial. On further review, we hold the bank failed to preserve error on the work-paper issue. Additionally, we hold the expert was not qualified to testify as to generally accepted CPA auditing standards, whether the accountant breached those standards, and causation. Therefore, we vacate the decision of the court of appeals and affirm' the judgment of the district court.

I. Background Facts and Proceedings.

Keith Chapman owned Chapman Lumber Company, Inc., a lumber business located in Hopkinton. In February 2003 Quad City Bank & Trust (QCBT) provided Chapman Lumber with a $500,000 line of credit. In July QCBT loaned Chapman Lumber $1,985,000. The United States Department of Agriculture (USDA) guaranteed eighty percent of this loan. In September QCBT increased Chapman Lumber’s line of credit to $750,000. As of October QCBT was aware Chapman Lumber defaulted on the $1,935,000 loan. Nevertheless, QCBT decided not to foreclose on the loan at that time.

As a condition of its guarantee, the USDA required a general audit of Chapman Lumber. Accordingly, on October 1 Chapman Lumber hired Jim Kireher & Associates, P.C. to perform a general audit for its fiscal year ending on June 30, 2003. According to Kireher, the objective of the audit was to express “an opinion about whether [Chapman Lumber’s] financial statements [were] fairly presented in all material respects, in conformity with U.S. generally accepted accounting principles.” Brian Feltes, a CPA and employee of Kireher, performed the audit. QCBT relied on the audit to validate Chapman Lumber’s financial performance and to decide whether to keep working with Chapman Lumber. In late December QCBT saw a preliminary version of the audit report. Kireher did not issue the final report until late January 2004. The audit showed that, for fiscal year 2003, Chapman Lumber had overdrafts of $59,474 and a deficit cash flow of $85,306.

By the end of January, Chapman Lumber was also in default on the $750,000 line of credit. Subsequently, QCBT informed Chapman Lumber that they had thirty days to acquire an infusion of venture capital or QCBT would foreclose on the loans. However, rather than foreclosing on the *87 loans after the thirty days expired, QCBT entered into a forbearance agreement with Chapman Lumber. The agreement provided that QCBT would not foreclose on its loans as long as Chapman Lumber procured an injection of venture capital.

In April Chapman Lumber suffered a substantial fire that destroyed its kilns, which were central to its operations. These events left QCBT with a decision. It could either recoup the insurance proceeds and liquidate Chapman Lumber or reinvest the proceeds into the business and keep Chapman Lumber operational. QCBT chose to keep Chapman Lumber operational due to the increased efficiency from newly installed kilns and the expectation that Chapman Lumber would receive a substantial venture capital investment. While it was waiting for the insurance proceeds, Chapman Lumber procured a short-term loan of $150,000 from QCBT to be paid back in ninety days.

In January 2005 the forbearance agreement expired. Chapman Lumber had not yet secured a venture capital investment. Thus, QCBT called its loans with Chapman Lumber due. Subsequently, Chapman Lumber filed for bankruptcy protection. In March QCBT went to Chapman Lumber’s premises to check on its collateral. During this check, QCBT discovered that Chapman Lumber had been defrauding the bank. QCBT found inventory at the facility, but Chapman Lumber did not own the inventory. Following this discovery, QCBT made a concerted effort to investigate Chapman Lumber’s finances. QCBT learned that Keith Chapman had a personal Wells Fargo bank account through which he funneled approximately $600,000 of the company’s money for his own personal expenses. Ultimately, QCBT netted $1,289,213 from Chapman Lumber’s liquidation.

QCBT filed an accounting negligence claim against Kircher. QCBT alleged that Kircher negligently performed its fiscal-year-2003 audit of Chapman Lumber because it failed to discover and accurately convey the true financial condition of Chapman Lumber. QCBT claimed it relied on Kircher’s audit when it delayed foreclosure on its loans with Chapman Lumber and, if it had known of the company’s lack of inventory and fraud, it would have liquidated the company at the time of the fire. Furthermore, QCBT asserted that, had it liquidated in 2004 at the time of the fire, it would have netted $912,270.10 more than the $1,289,213 it netted in the 2005 liquidation.

QCBT identified Kerry Bolt as an expert witness. Bolt was a certified fraud examiner, but not a CPA. Bolt began his career as a revenue agent for the Internal Revenue Service (IRS), where he conducted field audits of income tax returns of individuals and businesses. Bolt then became an IRS special agent and conducted criminal investigations of income tax fraud, money laundering, and terrorist financing. Subsequently, he retired from the IRS and started a forensic accounting business. In relation to this case, Bolt reviewed all of Feltes’s work papers, as well as other records, to determine whether Feltes sufficiently examined Chapman Lumber’s internal controls, inventory, and risk of fraud.

Thirteen days before trial, Kircher filed a motion in limine seeking to prohibit QCBT from introducing “any evidence from plaintiffs designated expert Kerry Bolt with respect to standards of care applicable to certified public accountants, whether that standard was breached, or causation” and “any evidence from Kerry Bolt based upon his perceived errors in [Feltes’s] work papers.” Kircher pointed to Bolt’s deposition testimony as proof that *88 he was unqualified to opine on whether Kircher performed the audit according to generally accepted auditing standards. In his deposition, Bolt testified he was not a CPA, had never performed a general audit of a business, and was not familiar with CPA auditing standards.

QCBT resisted the motion, arguing Bolt was qualified to opine that Feltes failed to meet generally accepted auditing standards by failing to adhere to the work papers. QCBT claimed that because Feltes admitted in his deposition that the generally accepted auditing standards required him to complete the work papers, Bolt could analyze Feltes’s work contained in the work papers to assure he did everything the work papers required.

The district court held a hearing on the motion in limine on the first morning of the trial. QCBT argued that Feltes and Kircher’s expert stated that the way you comply with the applicable professional CPA standards of care is to do as the work papers direct.

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Bluebook (online)
804 N.W.2d 83, 2011 Iowa Sup. LEXIS 75, 2011 WL 4407226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/quad-city-bank-trust-v-jim-kircher-associates-pc-iowa-2011.