R.J. Management Co. v. SRLB Development Corp.

Case Date: 02/10/2004
Court: 2nd District Appellate
Docket No: 2-02-0842 Rel

No. 2--02--0842
 


 
IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
 


R.J. MANAGEMENT COMPANY,

            Plaintiff-Appellant and
            Cross-Appellee,

v.

SRLB DEVELOPMENT CORPORATION,

            Defendant-Appellee and
            Cross-Appellant.

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Appeal from the Circuit
Court of Lake County.



No. 99--L--804


Honorable
Stephen E. Walter,
Judge, Presiding.

JUSTICE BOWMAN delivered the opinion of the court:

Plaintiff, R.J. Management Company, sold defendant, SRLB Development Corporation, a330-acre parcel of land in Round Lake Beach for residential development. The sales contractprovided that SRLB would pay R.J. Management an additional sum if the development project metits projected profit level. After SRLB failed to pay the additional compensation, R.J. Managementbrought a cause of action for breach of contract. Following a bench trial, the trial court determinedthat SRLB breached the parties' contract by failing to render a proper accounting. However, the trialcourt also found that SRLB did not reach its projected profit level and, consequently, did not oweR.J. Management the contingent compensation. R.J. Management now appeals, asserting that thetrial court misjudged the nature of the relationship between R.J. Management and SRLB, and erredon two evidentiary matters. In addition, both parties appeal the trial court's decision not to awardattorney fees. We affirm.

The following facts are pertinent to the resolution of this matter. The parties entered into thereal estate sales contract on September 7, 1990. SRLB purchased the vacant land for $5 million. Over a period of approximately 10 years, SRLB built and sold 900 single-family homes. Theparticular contract provision at issue in this case states:

"Purchaser anticipates that completion of Purchaser's Development Plan will result inPurchaser realizing a profit on the Property as set forth in the pro forma attached hereto andmade a part hereof as Exhibit B. At such time as Purchaser's Development Plan is completedand the last subdivided unit on the property has been sold, Purchaser shall do an accountingto determine its actual profits on the Property. In the event the accounting determines thatactual profits to be made on the property is [sic] equal to or greater than two-thirds (2/3) ofthe total pro forma net income set forth on Exhibit B hereto, Purchaser shall pay Seller anadditional sum of Two Hundred Fifty Thousand Dollars ($250,000.00) in immediatelyavailable funds."

SRLB's pro forma income statement forecasted a profit of $16,893,000. Thus, if the projectproduced a profit of $11,262,000 (two-thirds of $16,893,000) or greater, R.J. Management stoodto receive additional compensation of $250,000. However, R.J. Management never received thisadditional compensation as SRLB asserted that the project fell short of the goal, producing profitsin the range of $8 million. R.J. Management maintains that SRLB's $8 million profit figure isunsubstantiated because, over the life of the project, SRLB discarded most of the accounting sourcedocuments. Source documents are documents such as invoices and receipts that provide evidencethat a transaction has occurred. Thus, R.J. Management contends that it was impossible for SRLBto render a proper accounting as called for under the contract.

At trial, testimony came from R.J. Management's owner, SRLB executives, and two opposingexperts. Mainly, the testimony focused on the information sources used to perform the accountingand the propriety of the expenses included in the calculation of net income.

Rodney Johnson testified that he was the sole owner of R.J. Management. Johnson is anattorney who deals largely in the acquisition, sale, and development of real estate. He negotiated thereal estate sales contract with SRLB. According to Johnson, the parties never intended for theproject to be a joint venture.

The SRLB executives who testified included Maurice Sanderman. Sanderman is the principalowner of Sundance Homes, SRLB's parent company. In addition, the current and two former chieffinancial officers (CFOs) testified at trial.

In 1999, a portion of Sundance's business was sold to Centex Homes. During the process,many financial records were destroyed. This meant that SRLB could not produce many of thefinancial records that R.J. Management requested in discovery. The missing items included suchthings as ledgers, invoices, and canceled checks. Given that the limitations period for a federal taxaudit is three years, SRLB prematurely destroyed many of the financial records from the later yearsof the project.

After R.J. Management filed suit, Joseph Atkins, CFO from 1997 through 1999, performeda financial analysis of the development project. The home sales had taken place between the years1992 and 1999. Atkins used financial statements from 1992 and 1993 and SRLB's tax returns for theyears 1994 through 1999 to complete the financial analysis.

Dan O'Brien was CFO from 1990 to 1996. He established Sundance's accounting system. From the source documents, monthly income statements were prepared, eventually resulting in acompilation of year-end financial statements. The tax returns were then prepared using thisinformation. According to O'Brien, the information contained in the tax returns represented SRLB'sactual performance.

Gary Finigan served as Sundance's comptroller from 1997 through the end of the developmentproject and as CFO after Atkins. Finigan verified that the information contained in the tax returnsfrom 1997 to 2000 accurately reflected SRLB's financial performance.

The trial court initially admitted the tax returns as business records. However, it laterreconsidered the issue and refused to admit the tax returns. The trial court decided that the taxreturns reflected summary information and that the requisite underlying support documents wereunavailable.

Atkins used the available financial statements and tax returns to prepare an accounting of theprofits from the development project. He concluded that the entire project produced a profit of$8,719,022. Obviously, this figure was well below the $11,262,000 profit threshold required totrigger the contingent compensation clause. SRLB also retained Bruce Richman, an accountingexpert, to perform an accounting. Richman used the tax returns filed during the years of the projectand the remaining financial records to conclude that the project earned $8,792,000. Soon thereafter,Finigan replaced Atkins as CFO. Finigan performed his own review and determined that the profiton the project was $7,963,093. Finigan said that his figure was lower than either Atkins's orRichman's profit figure because he made corrections to the management fee that was charged to theproject. A management fee is a method of allocating overhead and pooled costs from a parentcompany to its subsidiaries. Generally, the costs included in a management fee cannot be attributedto any particular "profit driver," a specific profit-producing activity. In a typical company, themanagement fee may include utility costs, insurance, and centralized functions like the accounting andlegal departments. According to Finigan, the original management fee charged to the project was toolow.

Sundance used the same accounting methods to assign costs to each of its projects. Sanderman, O'Brien, Atkins, and Finigan all testified that there was no double billing of expenses. Specifically, this means that direct expenses (expenses directly attributable to a specific profit driver)and expenses assigned through the application of the management fee were distinct and separate, andany identifiable cost was expensed only once. The management fee included costs of functions suchas marketing, personnel, and accounting. Sundance assigned the management fee based on thepercentage of gross sales attributable to the subsidiary. According to Sanderman, assigning themanagement fee based on the percentage of sales was the most accurate way to match expenses withthe revenues produced by Sundance's subsidiaries. Finigan testified that he examined the managementfees assigned to all Sundance subsidiaries during the10 years of the SRLB development project. Hedetermined that, if anything, the management fee assigned by Sundance to each of the subsidiarieswas too low. However, on the whole, Finigan believed that the management fees were fair andaccurate. The total amount of the management fee charged to SRLB was approximately $7 million,matched against gross sales of approximately $121 million.

Two expert accountants testified at trial. Jack Ehrlich testified on behalf of R.J. Management. Ehrlich reviewed all of the documents SRLB produced as well as the accountings produced by Atkinsand Finigan. He also reviewed the accounting rendered by SRLB's expert, Bruce Richman.

According to Ehrlich, SRLB did not render a proper accounting. He believed that, becauseso many of the original source documents had been discarded, SRLB could not perform anaccounting as called for under the real estate sales contract. Ehrlich also opined that Sundance'sallocation method for the management fee violated Cost Accounting Standard 403 (CAS 403). Under CAS 403, costs must have a causative or beneficial connection to a project. Ehrlich criticizedSRLB for not properly matching the costs represented by the management fee with the revenueproduced by the development project.

Ehrlich refused to render any opinion on the profitability of the development project. He didnot believe that it was appropriate to rely on the tax returns to determine profitability. He pointedout that there are differences between financial net income and taxable income. Also, because manysource documents were missing, he believed that it was impossible to have confidence that the figureswere correct.

In contrast to Ehrlich's position, Richman opined that R.J. Management did not qualify toreceive the additional $250,000. Based on a review of available financial statements and tax returns,Richman said that it was clear that SRLB's profitability did not come close to meeting the profitthreshold required to qualify for the bonus. Richman concluded that the development projectproduced a profit of $8,792,853. He stated that it was "quite sufficient" to use tax returns todetermine if the contract contingency occurred because the formula for triggering the bonuscompensation was simple and straightforward. Contrary to Ehrlich, he believed that it wasunnecessary to have the source documents to conduct an accounting. In his view, the tax returns areall a person would need to complete the accounting. He pointed out that the tax returns summarizeall of the basic financial information, and that a schedule in each tax return reconciles financial incomewith taxable income. Furthermore, Richman possessed confidence that the tax return figures werecorrect, even in the absence of the source documents, because they were derived from SRLB'saccounting records. Each year, the CFO or comptroller, namely O'Brien, Atkins, or Finigan, verifiedthe records.

According to Richman, it is very typical for companies to use a management fee to spread outoverhead costs. In fact, Richman agreed with Finigan that SRLB's share of the management fee wasunderstated. He believed that it was appropriate and common for companies like Sundance toallocate a management fee based on a subsidiary's percentage of company sales.

Because the tax returns contained a single line item for the management fee, Finigan providedRichman with an itemized account of the expenses comprising the management fee. The informationFinigan supplied, Richman said, was reasonably and ordinarily relied upon in the accounting industryto determine a subsidiary's allocable expenses. Under the most generous estimate of the developmentproject's profitability, the project still did not come close to reaching the requisite profit threshold,Richman said.

In the end, the trial court found that SRLB failed to render an accounting as required underthe real estate sales contract. The trial court stated that an accounting required the availability ofsource documents or at least the documents that originally summarized the source documents. Thus,with knowledge that an accounting was due, SRLB discarded its source documents. Consequently,the trial court determined that it was required to draw all reasonable presumptions against SRLB.

Nonetheless, the trial court believed Richman's conclusion that the project did not producesufficient profits to trigger the contingency clause. The trial court found that the tax returns weresufficiently reliable to support Richman's conclusion. Also, the court determined that Sundance'smanagement fee properly allocated expenses to SRLB that could not otherwise be directly assignedto the development project. Thus, because SRLB did not earn a profit of $11,262,000, it did not oweR.J. Management the $250,000. Finally, the trial court decided not to award attorney fees.

R.J. Management's basic argument challenges the sufficiency of the evidence. We will notdisturb the trial court's findings unless they are against the manifest weight of the evidence. Peopleex rel. Illinois Historic Preservation Agency v. Zych, 186 Ill. 2d 267, 278 (1999).

As an initial matter, SRLB has tucked into its response brief a request for us to review the trialcourt's decision that SRLB failed to perform an accounting as contemplated in the parties' agreement. On this point, the trial court believed Ehrlich's testimony that a complete accounting as envisionedby the parties required SRLB to maintain the source documents or at least the original summarydocuments. We conclude that the trial court's finding is not against the manifest weight of theevidence. R.J. Management has filed a motion asking us to strike this argument based on the mannerin which SRLB raised it. Because SRLB's argument lacks merit, it is unnecessary to discuss it anyfurther. R.J. Management's motion to strike portions of SRLB's brief is denied.

As the first major issue on appeal, R.J. Management maintains that the trial court failed toapply the adverse presumption arising from SRLB's destruction of its accounting records. Alternatively, R.J. Management asserts that, by misjudging the nature of the relationship between R.J.Management and SRLB, the trial court did not properly apply the adverse presumption arising fromthe destruction of the records.

Where a party has deliberately destroyed evidence, a trial court will indulge all reasonablepresumptions against the party. Haynes v. Coca Cola Bottling Co. of Chicago, 39 Ill. App. 3d 39,46 (1976). One of the presumptions is that the preservation of the evidence would have beenprejudicial to the party's case. Haynes, 39 Ill. App. 3d at 46. In this case, the adverse presumptionrequired the trial court to presume that SRLB met the threshold income required to trigger thecontingent compensation clause. This presumption is not evidence. See Smith v. Tri-R Vending, 249Ill. App. 3d 654, 661 (1993). Instead, it establishes a prima facie case as to the issue involved andshifts the burden of producing evidence. Smith, 249 Ill. App. 3d at 661. However, it does not shiftthe ultimate burden of persuasion. Smith, 249 Ill. App. 3d at 661.

Under the "Thayer approach" followed in Illinois, when contrary evidence is produced, themetaphorical bubble bursts and the presumption vanishes entirely. Barnes v. Brown, 193 Ill. App.3d 604, 611 (1990). No uniform test exists to dictate how much evidence is necessary to rebut apresumption. Smith, 249 Ill. App. 3d at 661. The party contesting the presumption must comeforward with sufficient evidence to support a finding of the nonexistence of the presumed fact. Barnes, 193 Ill. App. 3d at 611. Occasionally, a party attacking a presumption has a greater burdenof production than merely producing evidence sufficient to support a reasonable trier of fact's findingas to the nonexistence of the presumed fact. M. Graham, Cleary & Graham's Handbook of IllinoisEvidence