{ "id": 2598607, "name": "J. WILLIAM HOLLAND, Trustee in Bankruptcy for the Estate of American Reserve Corporation, Plaintiff-Appellant, v. ARTHUR ANDERSEN AND COMPANY, Defendant-Appellee", "name_abbreviation": "Holland v. Arthur Andersen & Co.", "decision_date": "1991-03-28", "docket_number": "No. 1\u201490\u20140949", "first_page": "645", "last_page": "654", "citations": [ { "type": "official", "cite": "212 Ill. App. 3d 645" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "714 F.2d 1266", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1886567, 6127623 ], "opinion_index": 0, "case_paths": [ "/f2d/714/1266-01", "/br/32/1266-01" ] }, { "cite": "107 S. Ct. 655", "category": "reporters:federal", "reporter": "S. 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App. 3d", "case_ids": [ 3563734 ], "weight": 6, "pin_cites": [ { "page": "862" }, { "page": "862" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/127/0854-01" ] } ], "analysis": { "cardinality": 851, "char_count": 20932, "ocr_confidence": 0.776, "pagerank": { "raw": 9.887542415545314e-08, "percentile": 0.5351344808133601 }, "sha256": "a2a895e96d767e827dd08763b6a019afe0941a1965f08d74893b2e2860a62984", "simhash": "1:33fe3566aacc255d", "word_count": 3393 }, "last_updated": "2023-07-14T15:59:33.778469+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "J. WILLIAM HOLLAND, Trustee in Bankruptcy for the Estate of American Reserve Corporation, Plaintiff-Appellant, v. ARTHUR ANDERSEN AND COMPANY, Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE JIGANTI\ndelivered the opinion of the court:\nThe plaintiff, J. William Holland, trustee in bankruptcy for the estate of American Reserve Corporation (ARC), appeals from a summary judgment order entered in favor of the defendant, Arthur Andersen & Co. On appeal, the plaintiff contends that the circuit court erred in granting the defendant\u2019s summary judgment motion because there remains a genuine issue of material fact as to the existence of any damages sustained by ARC.\nThis is the second time this case has come before this court. In the first appeal, the plaintiff sought reversal of a circuit court order dismissing the plaintiff\u2019s complaint for failure to state a cause of action. On appeal this court reversed the circuit court on five of the six counts of the complaint and ruled that as of the pleading stage of the litigation, ARC had standing to assert the causes of action alleged in its complaint. (Holland v. Arthur Andersen & Co. (1984), 127 Ill. App. 3d 854, 469 N.E.2d 419.) As of the instant appeal, the parties have moved beyond the pleading stage of the litigation to a determination of whether the plaintiff has come forward with evidence of damages to ARC such that there is a genuine issue of material fact under which the parties may advance to a full trial. We do not believe that there exists a genuine issue of material fact as to damages. We therefore affirm the ruling of the trial court.\nAmerican Reserve Corporation (ARC) is a bankrupt holding company. Two of ARC\u2019s subsidiaries, American Reserve Insurance Company and Reserve Insurance Company, property and casualty insurance companies, were declared insolvent, placed in receivership, and finally liquidated in 1979. Another ARC insurance subsidiary, Market Insurance Company, was placed into rehabilitation and also subsequently liquidated. In 1980, ARC filed for chapter 11 reorganization. The reorganization proceeding was converted to a chapter 7 liquidation proceeding and J. William Holland was appointed as trustee.\nAs trustee in bankruptcy for ARC, J. William Holland brought suit in 1982 in the circuit court of Cook County against the defendant, Arthur Andersen & Co., ARC\u2019s former accountant. The plaintiff alleged that misleading financial statements and unqualified opinions issued by the defendant about ARC\u2019s financial condition had damaged ARC. The complaint contained six counts of common law fraud and breach of contract alleged against the defendant. Arthur Andersen moved to dismiss the complaint for failure to state a cause of action. (Ill. Rev. Stat. 1983, ch. 110, par. 2\u2014 615.) The circuit court granted the defendant\u2019s section 2 \u2014 615 motion, and the plaintiff appealed the dismissal to this court in Holland v. Arthur Andersen & Co. (127 Ill. App. 3d 854, 469 N.E.2d 419). As noted above, this court reversed the circuit court on five counts, affirmed the court on one count and remanded the case to the trial court.\nAs part of the appeal in Holland v. Andersen, it was necessary for this court .to consider whether the trustee, J. William Holland, had standing to assert the causes of action outlined in the complaint. Arthur Andersen argued that the claims the plaintiff was seeking to bring were claims which in fact belonged to third-party creditors and shareholders, for which the plaintiff lacked standing to sue. This court determined that as of the pleading stage of the litigation, the plaintiff\u2019s allegations that various members of ARC, its \u201caudit committee, investors, creditors and others,\u201d were prevented from taking action on behalf of ARC because of Andersen\u2019s misconduct, were sufficient to maintain a cause of action belonging to ARC. Holland v. Andersen, 127 Ill. App. 3d at 862, 469 N.E.2d at 424.\nIn 1985, the plaintiff refiled its complaint. The refiled complaint is identical to the original complaint except for the omission of the one count whose dismissal this court upheld in Holland v. Andersen. In the complaint, the plaintiff asserted that the defendant was liable to ARC in that had ARC\u2019s audit committee, investors, creditors, and others relying on Andersen\u2019s opinion, known the true financial disposition of ARC, they could have, among other things, replaced management personnel, sought independent actuarial counseling, instituted procedures to prevent ARC\u2019s subsidiaries from becoming insolvent, sought additional capital to eliminate the insolvency of ARC or any of its insolvent subsidiaries, and prevented ARC from engaging in further bad business or encumbering further debt. The plaintiff further alleged that ARC was damaged as a result of Andersen\u2019s actions because ARC\u2019s principal insurance subsidiaries ultimately were liquidated and ARC lost substantial assets. The plaintiff subsequently characterized the pleadings as in part setting forth a theory of ARC\u2019s \u201cdeepening insolvency.\u201d\nIn response to the plaintiff\u2019s refiled complaint, the defendant filed an answer denying each allegation of injury to ARC. The defendant also propounded interrogatories to the plaintiff. Defendant\u2019s interrogatory No. 3 requested the plaintiff to respond as follows:\n\u201cDescribe each category of damages you contend ARC sustained as a result of the liquidation of Reserve and of each of its subsidiaries, and state the amount of damages as to each such category. Include a detailed description of the method by which each category of damages was determined or calculated and set forth the calculation as to each category.\u201d\nIn answer to interrogatory No. 3, the plaintiff responded:\n\u201cThe subject-matter of the interrogatory is limited by its terms to damages \u2018ARC sustained as a result of the liquidation of Reserve and each of its subsidiaries.\u2019 Plaintiff does not contend that ARC\u2019s damages resulted solely from the \u2018liquidation\u2019 of Reserve per se. As Trustee in Bankruptcy of the Estate of ARC, plaintiff brought this action expressly on behalf of the Estate for the benefit of its creditors and understands the damages to each creditor to be based in part on the loss such creditor suffered as a result of the events leading up to and including the collapse and liquidation of Reserve.\u201d\nThe plaintiff went on to note three categories of ARC creditors as damaged: several banking institutions by name, holders of subordinated debentures, and trade creditors. The plaintiff stated that further investigation and analysis might reveal further damages, and also objected to the interrogatory on the basis that the plaintiff had not consulted a damages expert. The plaintiff reserved the right to do so. The plaintiff also stated that the answer to interrogatory No. 3 was incomplete in that not all of the information necessary was \u201cknown, determined or calculated\u201d at the time of the plaintiff\u2019s response.\nThe defendant moved for a summary judgment on the basis that the plaintiff had failed to establish any genuine issue of material fact as to the existence of any compensable damages suffered by American Reserve Corporation. In support of the motion, the defendant referred to the plaintiff\u2019s answer to interrogatory No. 3 and argued that the only damages claimed by the plaintiff were those of ARC\u2019s creditors, claims for which ARC had no standing to pursue.\nThe plaintiff\u2019s response to the defendant\u2019s summary judgment motion rested on the allegations of the refiled complaint, the answers to the defendant\u2019s interrogatories, and copies of proofs of claims filed against ARC in bankruptcy court by La Salle National Bank and The Bank of California. La Salle National Bank alleged that ARC was indebted to La Salle in the sum of $3,567,262. The Bank of California alleged an ARC debt in the amount of $2,234,426. The indebtedness to each of the institutions arose as a result of the issuance and sale by ARC in September of 1977 of certain of its notes. As one of the events leading up to ARC\u2019s default of payment, the banks noted the \u201cfalse and misleading representation and statements in material respects, made by certain persons in connection with the issuance\u201d of the notes. Following a hearing on the motion, the circuit court granted summary judgment in favor of the defendant. The plaintiff follows with this appeal.\nThe plaintiff\u2019s first argument is that our prior ruling on the issue of ARC\u2019s standing to sue in Holland v. Andersen (1984), 127 Ill. App. 3d 854, 469 N.E.2d 419, precludes a finding of summary judgment in favor of the defendant. We disagree. We do not view the defendant\u2019s motion for summary judgment as raising a purported failure of the plaintiff to plead damages in the complaint as the plaintiff argues. We view the defendant\u2019s summary judgment motion as an assertion, not of a defect in the pleadings, but rather, an argument that the plaintiff has failed to present any evidence of damages to ARC. This is not the same issue that we addressed in our prior ruling in Holland v. Andersen.\nIn the prior proceeding, Andersen, through a section 2 \u2014 615 motion to dismiss, attacked the legal sufficiency of the plaintiff\u2019s complaint. (See Janes v. First Federal Savings & Loan Association (1974), 57 Ill. 2d 398, 312 N.E.2d 605.) This court determined that at that \u201cstage of the litigation,\u201d ARC\u2019s allegations were sufficient to maintain causes of action belonging to ARC. (Holland v. Andersen, 127 Ill. App. 3d at 862, 469 N.E.2d at 424.) Upon reaching the summary judgment stage of these proceedings, we have moved beyond an examination of the sufficiency of the pleadings to a determination of whether there are any material issues of fact to advance to a full trial. (Loyola Academy v. S&S Roof Maintenance, Inc. (1990), 198 Ill. App. 3d 799, 556 N.E.2d 586, leave to appeal granted (1990), 133 Ill. 2d 559, 561 N.E.2d 693, citing Janes v. First Federal Savings & Loan Association, 57 Ill. 2d 398, 312 N.E.2d 605.) For the reasons outlined below, we believe that there are not. The plaintiff has failed to sufficiently contradict the factual basis for the defendant\u2019s motion for summary judgment. We must conclude that the plaintiff lacks the evidence to support the element of damages, an element essential to his case.\nThe plaintiff argues that in moving for a summary judgment, the defendant must set forth evidentiary facts which avoid every theory of recovery in the complaint (Harris v. Bethlehem Steel Corp. (1984), 124 Ill. App. 3d 449, 464 N.E.2d 634), and that in the present case the defendant has failed to negate the material issue of damages raised in the plaintiff\u2019s pleadings. The plaintiff asserts that the defendant\u2019s fact support for the summary judgment motion, interrogatory No. 3, did not address all of the damage theories the plaintiff has pleaded. Quoting from interrogatory No. 3, the plaintiff maintains that the interrogatory was limited to \u201cdamages *** \u2018ARC sustained as a result of the liquidation of Reserve.\u2019 \u201d According to the plaintiff, the defendant has specifically failed to overcome the plaintiff\u2019s theory that ARC\u2019s own insolvency was deepened due to the defendant\u2019s fraud. Under the plaintiff\u2019s theory of deepening insolvency, ARC continued to sustain loss and incur debt it could have avoided had it known its true financial condition.\nThe plaintiff\u2019s further argument is that in order to support the summary judgment motion, the defendant must do more than simply point out deficiencies in the plaintiff\u2019s answer to an interrogatory. (Komater v. Kenton Court Associates (1986), 151 Ill. App. 3d 632, 502 N.E.2d 1295.) The defendant must set forth well-pleaded facts and supporting affidavits clearly establishing his right to judgment as a matter of law. The plaintiff also maintains that the response to interrogatory No. 3 actually contradicts the defendant\u2019s argument that ARC suffered no damages because the answer to the interrogatory is expressly incomplete. The plaintiff points to those portions of the response in which the plaintiff stated: \u201cPlaintiff does not represent or imply that his work on damages calculations and proof is complete. *** Plaintiff reserves his right to *** revise his damages theories in light of all pertinent facts and opinions. *** There may be additional elements of damages, which further investigation and analysis may reveal.\"\nFinally, the plaintiff argues that even if the only damages pleaded are those damages suffered by ARC\u2019s creditors, the plaintiff has standing to pursue those claims, and therefore summary judgment in favor of the defendant was improper. We believe that the trial court properly granted the defendant\u2019s motion for summary judgment. In response to interrogatory No. 3, the plaintiff asserted claims of ARC creditors. We do not believe that the plaintiff may pursue the creditors\u2019 claims as those claims are personal to the creditors. As the plaintiff has failed to identify any other damage to ARC, summary judgment is in order.\nThe plaintiff\u2019s failure to provide any evidence of a material issue of fact as to damages to ARC goes beyond a mere deficiency in its interrogatory response. The plaintiff has failed to provide any support for what is a central and necessary element of its case. (See Estate of Henderson v. W.R. Grace Co. (1989), 185 Ill. App. 3d 523, 541 N.E.2d 805.) Upon the defendant\u2019s motion for summary judgment, the plaintiff has an affirmative duty to bring forth all facts and evidence that satisfy his burden of proving the existence of a cognizable cause of action. (Golden v. Marshall Field & Co. (1985), 134 Ill. App. 3d 100, 479 N.E.2d 1211.) While the plaintiff need not prove his case at this stage of the litigation, he must at least come forward with enough evidence to create a genuine issue of material fact. Estate of Henderson, 185 Ill. App. 3d 523, 541 N.E.2d 805.\nWe believe it is clear from the defendant\u2019s interrogatory No. 3 that the focus of the defendant\u2019s discovery was any legally cognizable damages to the plaintiff. In response to the interrogatory, the plaintiff identified only damages suffered by three classes of ARC creditors. Moreover, in neither the plaintiff\u2019s memorandum in opposition to the defendant\u2019s motion, nor in response to the questioning of the circuit court during the hearing on the motion, did the plaintiff provide any further support for a theory of damages as to ARC. The copies of proofs of claims that La Salle Bank and The Bank of California have filed in bankruptcy court serve only to underscore the fact that these individual creditors have personal claims against ARC.\nFurther, we are not persuaded by the plaintiff\u2019s theory of ARC\u2019s deepening insolvency. In its opposition to the summary judgment memorandum, the plaintiff explained the \u201cdeepening insolvency\u201d of ARC as follows: \u201cThe concealment of the deepened insolvency of ARC, and the deepened insolvency itself, resulting from Andersen\u2019s fraud, caused harm to ARC because, inter alia, its creditors, instead of taking action to save ARC (and thus their own loans), extended credit as late as September 1977, long after the actual date of insolvency.\u201d While the deepening insolvency theory may be one the courts have recognized (see Schacht v. Brown (7th Cir. 1983), 711 F.2d 1343, cert. denied (1983), 464 U.S. 1002, 78 L. Ed. 2d 698, 104 S. Ct. 508), the plaintiff\u2019s version of the theory appears to be no more than a restatement in different terms of the injuries suffered by ARC\u2019s creditors.\nWe also do not believe that the plaintiff can avoid a motion for summary judgment by alleging, as it did in response to interrogatory No. 3, that further evidence might be forthcoming, or that the testimony of an expert in damages might add to the plaintiff\u2019s response. The purpose of the summary judgment procedure is to avoid the needless expense and time of a full trial where there is no showing that the plaintiff has even a prima facie case. (Kimbrough v. Jewel Companies, Inc. (1981), 92 Ill. App. 3d 813, 416 N.E.2d 328.) In the present case, the defendant\u2019s interrogatories were propounded to the plaintiff eight years after the original complaint was filed. The plaintiff never asked for additional time for discovery on the issue of damages. The time for the plaintiff to establish the damages element of his case was at hand. To allow the plaintiff to avoid the summary judgment stage of these proceedings by alluding to some vague and possible future evidence would be contrary to the purposes of a summary judgment motion. See Smalling v. LaSalle National Bank (1982), 104 Ill. App. 3d 894, 433 N.E.2d 713.\nWe also reject the plaintiff\u2019s alternative argument that even if the only damages the plaintiff has pleaded are damages ARC\u2019S creditors have suffered, the plaintiff, because he has standing to bring the creditors\u2019 claims, has withstood the summary judgment challenge. The plaintiff does not dispute that a trustee in bankruptcy does not have standing to bring the \u201cpersonal\u201d claims of creditors: those causes of action where \u201cthe claimant himself is harmed and no other claimant or creditor has an interest in the cause.\u201d (Koch Refining v. Farmers Union Central Exchange, Inc. (7th Cir. 1987), 831 F.2d 1339, 1348, cert. denied (1988), 485 U.S. 906, 99 L. Ed. 2d 237, 108 S. Ct. 1077.) The plaintiff argues that the creditors\u2019 claims he seeks to bring in the present case are in the nature of \u201cgeneral\u201d claims, those in which the liability is to all creditors without regard to the personal dealings of each.\nFor support, the plaintiff cites to cases in which bankruptcy trustees were held to have standing to prosecute creditors\u2019 claims. (Koch Refining v. Farmers Union Central Exchange, Inc. (7th Cir. 1987), 831 F.2d 1339; In re Kaiser (7th Cir. 1986), 791 F.2d 73, cert. denied (1986), 479 U.S. 1011, 93 L. Ed. 2d 710, 107 S. Ct. 655; In re MortgageAmerica Corp. (5th Cir. 1983), 714 F.2d 1266.) By the plaintiff\u2019s own admission, these cases involved either the fraudulent conveyance of an entity\u2019s assets wherein the trustee is empowered by statute to assert the creditors\u2019 claims or situations in which the trustee on behalf of the creditors pierced the corporate veil to retrieve assets to be rightfully distributed amongst the creditors in general. These are not the circumstances of this case.\nWe accept the plaintiff\u2019s distinction between personal and general claims of creditors. However, we believe that in the present case the plaintiff\u2019s proof of damages goes only to creditors\u2019 claims properly classified as personal. This case presents a situation similar to that in Begier v. Price Waterhouse (E.D. Pa. 1987), 81 Bankr. 303. In Be gier, a trustee brought an action against the debtor\u2019s former accountant alleging that creditors had been injured when they relied on financial statements and unqualified opinions of the debtor\u2019s accountants in making financial decisions. The Eastern District Court of Pennsylvania ruled that the creditors\u2019 claims were personal to the creditors, requiring proof that each creditor received and relied on the information prepared by the defendant.\nIn the present case, the plaintiff has made allegations similar to those of the Begier trustee. The plaintiff has provided proofs of claims submitted by La Salle Bank and The Bank of California. These proofs indicate that ARC was indebted to two distinct institutions for two distinct amounts, claims that would require proof as to each creditor. We believe that the claims of these banks are personal in nature and not of the general type which the plaintiff is entitled to bring. In its answer to interrogatory No. 3, the plaintiff asserted that the damages for each of the three categories of creditors noted in its response were based on the amounts set forth in the proofs of claim filed by those creditors in ARC\u2019s bankruptcy proceedings. We have no reason to believe that the nature of these claims is different from the proofs of claims submitted by La Salle Bank and The Bank of California. In Holland v. Andersen (127 Ill. App. 3d 854, 469 N.E.2d 419), we stated that a liquidation trustee may pursue only those claims which belong to the estate of the debtor corporation. The only damages for which the plaintiff has provided evidence are those claims which belong personally to the creditors. As such, we believe that the circuit court properly granted the defendant\u2019s summary judgment motion. The circuit court\u2019s order is affirmed.\nAffirmed.\nJOHNSON and LINN, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE JIGANTI" } ], "attorneys": [ "Ross & Hardies and Beigel & Sandler, Ltd., both of Chicago (William P. O\u2019Keefe, Jr., Jeffery M. Cross, Leslie D. Locke, Herbert Beigel, and PhilipFertik, of counsel), for appellant.", "Burke, Wilson & Mcllvaine, of Chicago (Charles W. Boand, Robert F. Forrer, Quint\u00edn F. Seamons, and Christopher C. Dickinson, of counsel), for appellee." ], "corrections": "", "head_matter": "J. WILLIAM HOLLAND, Trustee in Bankruptcy for the Estate of American Reserve Corporation, Plaintiff-Appellant, v. ARTHUR ANDERSEN AND COMPANY, Defendant-Appellee.\nFirst District (4th Division)\nNo. 1\u201490\u20140949\nOpinion filed March 28, 1991.\nRehearing denied May 10, 1991.\nRoss & Hardies and Beigel & Sandler, Ltd., both of Chicago (William P. O\u2019Keefe, Jr., Jeffery M. Cross, Leslie D. Locke, Herbert Beigel, and PhilipFertik, of counsel), for appellant.\nBurke, Wilson & Mcllvaine, of Chicago (Charles W. Boand, Robert F. Forrer, Quint\u00edn F. Seamons, and Christopher C. Dickinson, of counsel), for appellee." }, "file_name": "0645-01", "first_page_order": 667, "last_page_order": 676 }