author: JUSTICE COLWELL

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY BAVAS, Defendant-Appellant.
    Second District
    No. 2—92—0306
    Opinion filed November 9, 1993.
    — Rehearing denied December 14, 1993.

      Donald J. Ramsell, of Ramsell & Associates, of Wheaton, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE COLWELL

delivered the opinion of the court:

Defendant, Anthony Bavas, appeals the circuit court’s order denying his petition to rescind the statutory summary suspension of his driver’s license. The court granted the State’s motion for a directed finding at the close of defendant’s case. On appeal, defendant contends that the court’s ruling was against the manifest weight of the evidence.

On December 27, 1991, defendant was arrested and charged with driving under the influence of alcohol (Ill. Rev. Stat. 1991, ch. 951/2, par. 11 — 501(a)(2) (now 625 ILCS 5/ll-501(a)(2) (West 1992))). Defendant filed a petition to rescind the summary suspension of his license (625 ILCS 5/2 — 118.1 (West 1992)). The court set a February 13,1992, hearing date for the petition.

On February 13, the State filed a motion to continue the hearing, alleging that the arresting officer was ill and therefore was unavailable as a witness. Defendant objected, pointing out that this was the third time the petition had been set for a hearing. The court denied the State’s motion and commenced the hearing.

Defendant testified that on December 27, 1991, from 8:30 p.m. until 12:30 a.m., he was at Olando’s Pizza Pub with his wife and some friends celebrating his wife’s birthday. During this time, he consumed two Old Style beers and two Sharp’s nonalcoholic beers. At approximately 12:30, defendant left Olando’s with his wife and proceeded to drive home. He was not under the influence of alcohol when he left the bar. A Roselle police officer stopped defendant while he was driving west on Route 20. Defendant had not committed any traffic violations prior to being pulled over.

Defendant admitted drinking two Old Styles and two Sharp’s that evening. The officer asked defendant to perform some field sobriety tests, but defendant refused. The officer placed defendant under arrest and transported him to the police station. At the station, defendant refused to submit to a breathalyzer test. Defendant testified that he was never read the warning to motorists. If he had been informed of the warning, he would have taken the test. Defendant was unsure of what time he arrived at the police station, how long he was at the station, or what time his wife picked him up.

Defendant also called as a witness Jo Ellen Smith, a bartender at Olando’s. She testified that she had known defendant for about two years because he was a customer at the bar. She recalled that on December 27 defendant was with his wife and friends celebrating his wife’s birthday. She recalled serving defendant two bottles of Sharp’s and two bottles of Old Style during the evening. In her opinion, defendant was not under the influence of alcohol when he left the bar.

Smith testified on cross-examination that there were 50 or 60 customers in the bar that night. She could not recall specifically what each of them had to drink. She could recall generally what drinks she brought to the defendant’s table, but could not recall specifically what each other person at the table drank. She admitted that she did not observe defendant continuously between 8:30 and 12:30.

The court granted the State’s motion for a directed finding at the close of defendant’s case. The court found defendant’s testimony not to be credible. Although defendant recalled that he was at the traffic stop for 20 minutes, he could not recall how long he was at the police station or in the holding cell. The court did not make a specific finding concerning Smith’s testimony.

Defendant filed a timely notice of appeal. On appeal, he contends that the court’s findings were against the manifest weight of the evidence. He argues that the testimony of himself and Smith was consistent, uncontradicted and not inherently implausible. Therefore, he concludes, the court erred in rejecting this testimony and granting a directed finding for the State. The State responds that the evidence was inherently implausible and the court properly found that it was insufficient to sustain defendant’s burden of proof.

A defendant who has been notified that his license is to be summarily suspended may file a petition to rescind the suspension. (Ill. Rev. Stat. 1991, ch. 95x/2, par. 2 — 118.1 (now 625 ILCS 5/2 — 118.1 (West 1992)).) A statutory summary suspension hearing is a civil proceeding, and defendant, as the petitioner, has the burden of proof. (People v. Orth (1988), 124 Ill. 2d 326, 341; People v. Sanders (1988), 176 Ill. App. 3d 467, 469.) If defendant makes out a prima facie case for rescission, the burden shifts to the State to come forward with evidence justifying the suspension. Orth, 124 Ill. 2d at 341.

In a closely analogous situation, once a defendant establishes that a warrantless search was conducted and he was doing nothing unusual at the time, the burden shifts to the State to show the propriety of the search. (People v. LaGrone (1984), 124 Ill. App. 3d 301, 303; see also People v. Reusch (1991), 209 Ill. App. 3d 991, 993.) In the instant case, defendant testified that he had not violated any traffic laws and generally was doing nothing unusual at the time he was stopped. He also testified, and Smith corroborated, that he had only two beers during a four-hour period and was not intoxicated at the time. Finally, he testified that the arresting officer did not read him the warning to motorists concerning the consequences of the refusal to submit to a breath test. All of this evidence was uncontradicted. Moreover, defendant and Smith were not substantially impeached.

At argument before the trial court the State focused on what it considered the inherent implausibility of defendant’s evidence. In denying defendant’s petition and continuing the suspension, the trial court stated that it found defendant’s testimony unbelievable. The court stated, “While your arguments on the law are well founded, I find that the Defendant has attempted to rewrite things and I give him no credibility and I find against him.” The court specifically noted that defendant was able to recall that he spent 20 minutes at the scene of the traffic stop, but could not recall how long he spent in the holding cell or how long he was at the police station.

On appeal, the State renews its argument that defendant’s evidence was unworthy of belief. However, the State does not dispute defendant’s contention that his evidence was essentially uncontradicted and unimpeached. The circumstances under which the trier of fact may disregard uncontradicted and unimpeached testimony are severely limited.

As noted, a statutory summary suspension hearing is a civil proceeding at which defendant has the burden of proof. (Orth, 124 Ill. 2d at 341.) The State is thus placed in the position of a civil defendant. Generally, in ruling on a defendant’s motion for judgment at the close of plaintiff’s case, the trial court must follow a two-step process. The court must first determine if plaintiff has made out a prima facie case. If not, the court enters judgment for defendant. If so, the court proceeds to weigh the evidence. (Kokinis v. Kotrich (1980), 81 Ill. 2d 151, 155.) In weighing the evidence, the court is to consider all the evidence, pass on the credibility of the witnesses, draw all reasonable inferences from the evidence, and generally consider the weight and quality of the evidence. (Kokinis, 81 Ill. 2d at 154; Rohter v. Passarella (1993), 246 Ill. App. 3d 860, 865.) The trial court’s decision will not be disturbed on appeal unless it is contrary to the manifest weight of the evidence. Kokinis, 81 Ill. 2d at 154; Rohter, 246 Ill. App. 3d at 865.

While ruling on a motion for a directed finding at the close of plaintiff’s case thus requires the trial court to weigh the evidence and assess the credibility of the witnesses, the court is still bound by the rules relating to the acceptance of unrebutted testimony.

In general, although the credibility of the witnesses and the weight to be accorded their testimony are typically jury considerations, the fact finder cannot arbitrarily or capriciously reject the testimony of an unimpeached witness. (People ex rel. Brown v. Baker (1981), 88 Ill. 2d 81, 85.) “Where the testimony of a witness is neither contradicted, either by positive testimony or by circumstances, nor inherently improbable, and the witness has not been impeached, that testimony cannot be disregarded even by a jury.” (Baker, 88 Ill. 2d at 85; Moran v. Lala (1989), 179 Ill. App. 3d 771, 781.) The same rule applies to a trial court sitting as the finder of fact. See Aluminum Co. of America v. Home Can Manufacturing Corp. (1985), 134 Ill. App. 3d 676, 683.

Evidence may not be disregarded as inherently improbable unless it is of a “physical impossibility, or *** is in contradiction of matters of common knowledge or laws of nature operating with uniformity, would be regarded as incredible and would not tend to produce in any rational mind a belief in the existence of the fact stated.” (Chicago City Ry. Co. v. Hagenback (1907), 228 Ill. 290, 294.) However, “if a statement is merely inconsistent with reasonable probabilities,” the court may not simply reject that testimony. Hagenback, 228 Ill. at 294; see also Jones v. Consolidation Coal Co. (1988), 174 Ill. App. 3d 38, 44 (testimony is inherently improbable if it is contrary to the laws of nature or universal human experience or if facts stated by witness demonstrate falsity of testimony).

In this case, defendant made out a prima facie case for rescission. He testified that he had only two beers, was not intoxicated, was not violating any traffic laws when he was stopped and was never read the warning to motorists. This evidence was essentially unrebutted. Moreover, it was not so inherently improbable that the court was free to disregard it.

We agree with the State that aspects of defendant’s evidence are suspect. Defendant testified in essence that the officer pulled him over for no apparent reason and asked him to submit to field sobriety tests and a breath test without reading the required warnings. Defendant recalled that he was at the traffic stop for 20 minutes, but could not recall how long he spent at the police station. Smith recalled exactly what she served defendant to drink on the night in question, but could not recall with the same degree of specificity what she served any of the bar’s other 50 or 60 customers. While these facts might raise credibility questions in a contested proceeding, here there was no evidence from which the court could conclude that defendant and Smith were not credible. We cannot say that defendant’s and Smith’s testimony was contrary to the laws of nature or to universal human experience. It follows that the trial court’s ruling granting the State a directed finding was contrary to the manifest weight of the evidence.

For the foregoing reasons, the judgment of the circuit court is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

GEIGER and BOWMAN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE QUETSCH

license: Public Domain

text:
    MAXINE MOLITOR et al., Plaintiffs-Appellees, v. MARY B. JAIMEYFIELD, Defendant-Appellant.
    Second District
    No. 2—92—1153
    Opinion filed November 2, 1993.

      Keely Truax, of Parrillo, Weiss & O’Halloran, of Chicago, for appellant.
    Jill L. Olson, of Gooding & Goblet, of Aurora, and Bernard J. Hennessy, of Chicago, for appellee Maxine Molitor.
    William A. Delaney II, of Lindner, Speers & Reuland, P.C., of Aurora, for appellee Rosetta Russell.
   JUSTICE QUETSCH

delivered the opinion of the court:

Defendant, Mary Jaimeyfield, appeals the judgment of the circuit court entered on jury verdicts in favor of plaintiffs, Maxine Molitor and Rosetta Russell. Defendant contends that the court erred (1) in barring questioning concerning Russell’s prior injuries and (2) instructing the jury concerning damages for Molitor’s future pain and medical expenses when there was insufficient evidence of permanency to warrant the instruction.

On June 5, 1990, Russell was a passenger in an automobile being driven by Molitor when it was rear-ended by defendant’s car. Both Russell and Molitor sustained back injuries. They each filed a complaint against defendant, who filed a counterclaim for contribution against Molitor. The court consolidated the cases for trial. Defendant reached a good-faith settlement with Molitor and dismissed her counterclaim with prejudice.

On the day of trial, Russell moved in limine to bar evidence regarding her prior injuries. In response to the motion, defense counsel argued that Russell had testified at her deposition that she had previously injured her low back in a 1989 slip and fall and in a 1987 auto accident and that Russell had answered interrogatories in the present case claiming neck and back strain from the 1990 accident. Russell’s attorney did not dispute that she had previously injured her back, but contended that no proof existed that there was any connection between the injuries or that they were to the same part of the body. The court granted Russell’s motion.

In an evidence deposition read to the jury, William Mollohan testified that he treated Russell on June 5, 1990. Russell complained of low back pain following an auto accident. He diagnosed her condition as acute lumbar muscle strain and prescribed treatment for that condition. On September 10, 1990, he saw Russell again and diagnosed her condition as recurrent low back muscle strain.

In a portion of the deposition which was not read to the jury, Mollohan testified that he was not told that Russell had prior injuries, but that this information would have been important to his treatment.

The deposition of Handel Metcalf, Molitor’s chiropractor, was also read to the jury. He treated her between June 8 and October 17, 1990, but had not seen her since the latter date. He initially diagnosed her injury as post-traumatic cervical strain. He opined, based on a reasonable degree of chiropractic certainty, that Molitor “would most likely continue to experience some level of exacerbation from time to time” and might need additional care for the injuries sustained. It was “exceedingly difficult” for him to determine whether the injury was permanent, since he had not seen her for some time, but it was his opinion that she would “continue to experience some level of reoccurrences for a period of time.” Based on her physical condition at the time of her last office visit, he opined that some form of further care would “most likely” be needed. Molitor might require one to two office visits per month at a cost of $150 per month.

At the instructions conference, Molitor tendered instructions seeking damages for future pain and suffering and future medical expenses. Over defendant’s objection, the court gave these instructions.

The jury returned verdicts in favor of Molitor for $11,700.94 and in favor of Russell for $14,359.25. Molitor’s verdict included $3,000 for past and future pain and suffering and $4,280.94 for past and future medical expenses. The court entered judgment on the verdicts and denied defendant’s post-trial motion. Defendant then perfected this appeal.

Defendant first contends that the court erred in barring evidence concerning Russell’s prior injuries. Defendant argues that the court improperly required defendant to establish a connection between the two injuries. She maintains that such a connection is unnecessary where the injuries are to the same part of the body. Russell responds that defendant waived this issue by failing to make an adequate offer of proof and has therefore failed to demonstrate prejudice from the exclusion of the evidence.

Generally, evidence of a prior injury to the same part of the body for which damages are being sought is admissible without proof of a causal connection between the injuries. (O’Brien v. Thomas Steel Corp. (1989), 181 Ill. App. 3d 901, 904; Palsir v. McCorkle (1966), 70 Ill. App. 2d 425, 430-31.) However, there must be some evidence of the nature, extent, duration or treatment of the previous injury. Tisoncik v. Szczepankiewicz (1983), 113 Ill. App. 3d 240, 243.

Russell contends that defendant failed to make an adequate offer of proof on this issue. A party cannot complain of the failure to admit evidence without showing what that evidence would be in order to allow the court to assess the prejudice to the complaining party. While a statement of counsel may be an acceptable offer of proof, the informal offer must be specific, or the error will not be preserved. An informal offer which merely summarizes the witness’ expected testimony in a conclusional manner does not preserve the error. Healy v. Bearco Management, Inc. (1991), 216 Ill. App. 3d 945, 957; Mulhern v. Talk of the Town, Inc. (1985), 138 Ill. App. 3d 829, 834.

In the instant case, defendant’s offer of proof was inadequate to preserve the issue for review. At the hearing on the motion in limine, defense counsel merely stated that Russell had previously injured her “low back” in a fall down the stairs and in a 1987 auto accident. Counsel referred to plaintiff’s deposition, but never tendered the deposition to the court nor sought to call Russell as a witness to make an offer of proof. Russell’s deposition is not included in the record on appeal. Thus, while the record shows that Russell previously injured her low back, there is no indication of the extent or duration of the injury, the treatment she received, if any, or whether the injury continued to bother her at the time of the 1990 accident. Due to the lack of a sufficient record, we can only speculate whether defendant was prejudiced by the failure to admit evidence of the prior injuries. Defendant has failed to establish any reversible error.

Defendant next contends that the court erred by instructing the jury concerning damages for Molitor’s future pain and medical expenses. Defendant contends that Dr. Metcalf’s testimony concerning the permanency of Molitor’s injury was equivocal and was based on an examination which occurred 18 months prior to trial. Molitor re-spends that an expert’s opinion need not be based on absolute certainty and that any weaknesses in Metcalf’s opinion were properly left for the jury’s resolution.

Testimony of a medical expert need not be based on absolute certainty, but only on a reasonable degree of medical certainty. (Hunter v. Chicago & North Western Transportation Co. (1990), 200 Ill. App. 3d 458, 473; Roman v. City of Chicago (1985), 134 Ill. App. 3d 14, 21.) A doctor may testify concerning the progressive nature of an injury based upon his examination of the plaintiff and her medical history. If the defendant believes this is a weak basis for testimony regarding future medical problems, he can argue this to the jury. Roman, 134 Ill. App. 3d at 20.

In Roman, a doctor’s opinion that plaintiff “will” need surgery within 10 years was admissible and was not unduly speculative. (Roman, 134 Ill. App. 3d at 20.) In Zitzmann v. Miller (1990), 194 Ill. App. 3d 477, 484, a doctor’s testimony that future treatment at a pain clinic was a “strong possibility” was admissible as evidence of future damages.

In this case, Dr. Metcalf testified that he believed, within a reasonable degree of chiropractic certainty, that Molitor would continue to experience pain and would likely need future treatment. This opinion was admissible. The facts that his last examination of plaintiff occurred 18 months before trial and that plaintiff had not sought treatment from him after that date went only to the weight of the evidence, not its admissibility. These facts were before the jury and it could rely on them along with the other facts and circumstances in evaluating Dr. Metcalf’s opinion.

We note that the verdict forms used below combined the amounts for past and future pain and medical expenses. Thus we have no way of knowing whether the jury awarded anything for future damages. However, the amount awarded Molitor for medical expenses is exactly the amount of medical bills she submitted for expenses already incurred. It does not appear that the jury awarded her any amount for future medical expenses. Therefore, even if the admission of the testimony was error, defendant has not established prejudice.

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

McLAREN and DOYLE, JJ., concur.


author: PRESIDING JUSTICE INGLIS

text:
    JOAN CASHMAN et al., Plaintiffs-Appellants, v. COOPERS AND LYBRAND, Defendant-Appellee.
    Second District
    No. 2—92—1473
    Opinion filed November 10, 1993.
    — Rehearing denied December 13, 1993.
    Richard S. Reizen, James X. Bormes, Arthur W. Aufmann, and Paul A. Castiglione, all of Joyce & Kubasiak, P.C., of Chicago (Edward T. Joyce, of counsel), and William M. Graham and Thomas L. Sbertoli, both of Graham, Graham & Sbertoli, Ltd., of Libertyville, for appellants.
    Harold C. Wheeler and Alexander S. Vesselinovitch, both of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, and George A. Davidson, of Hughes, Hubbard & Reed, of New York, New York (William R. Maguire, of counsel), for appellee.
   PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Plaintiffs, a group of shareholders and some former directors and officers of Stotler Group, Inc. (SGI), appeal from an order of the circuit court of Lake County which dismissed their complaint under section 2 — 615 of the Code of Civil Procedure (735 ILCS 5/ 2 — 615 (West 1992)). Plaintiffs had sued Coopers & Lybrand, an accounting firm (the accountants), alleging breach of contract, negligence and fraud. The circuit court dismissed plaintiffs’ third amended complaint based on a lack of standing and for failure to state a claim for breach of contract. We affirm.

Plaintiffs alleged that the accountants served as independent public accountants for SGI and its subsidiaries, including Stotler and Company (Stotler), which was a futures commission merchant (FCM). The accountants allegedly audited the financial statements of SGI and its subsidiaries for the periods ending December 31, 1988, and December 31, 1989, and issued unqualified opinions that those financial statements fairly represented SGI’s financial condition. According to plaintiffs’ complaint, the accountants’ audit reports were given to plaintiffs, SGI, Stotler, the Securities Exchange Commission (SEC), the Commodity Futures Trading Commission (CFTC) and others. Plaintiffs claim that the rules of the American Stock Exchange as well as the terms of certain engagement letters between the accountants and SGI required the accountants to provide SGI’s shareholders with copies of their opinions.

The accountants’ reports stated that the audits were properly performed and noted specifically that SGI’s subsidiaries had exceeded minimum net capital levels imposed by the SEC and the CFTC. Plaintiffs allege that during the course of auditing SGI and its subsidiaries the accountants “became familiar with SGI’s management information systems, computer programs, accounting policies, regulatory net capital requirements, revenue recognition policies, public filings, press releases, internal controls and personnel.” They also claim that the accountants “became familiar with SGI’s internal auditing systems and [were] aware of material accounting weaknesses and internal control weaknesses which caused SGI’s books and records to not accurately reflect SGI’s accounts.”

Plaintiffs claim that CFTC regulations require FCMs like Stotler to maintain net capital equal to 4% of customers’ segregated funds. Net capital is the amount by which an FCM’s current assets exceed liabilities. Plaintiffs allege that as of December 31, 1989, in order to correct a net capital problem, Stotler transferred certain noncurrent capital assets worth about $13 million to SGI in return for SGI assuming a like amount of Stotler’s liabilities. Stotler remained secondarily liable for the liabilities assumed by SGI.

According to plaintiffs, the accountants concluded that the above transfer corrected Stotler’s net capital deficiency. However, plaintiffs claim that CFTC regulations prohibited Stotler from excluding contingent liabilities when computing net capital. Federal regulators subsequently declared Stotler to be in violation of its net capital requirements and the CFTC filed an administrative complaint against Stotler. Stotler settled the dispute and agreed to a permanent trading ban and the revocation of its registration as an FCM. The SEC filed a complaint against Stotler which also was settled. Part of the settlement agreement required revocation of Stotler’s registration as a government securities broker-dealer.

Plaintiffs allege that when the above facts became publicly known, the price of SGI’s stock fell from a high of approximately $13.75 per share in 1989 to $0 per share in August 1990. SGI declared bankruptcy in August 1990. Plaintiffs claim that SGI would have corrected the net capital problem if the accountants had brought it to the attention of SGI’s management. They allege that SGI did not have sufficient time to remedy the problem after it was informed of the problem’s existence by government regulators. Plaintiffs claim that they were damaged because they were not afforded an opportunity to minimize their loss on their purchase of SGI stock. They state that if the accountants had spotted the problem, plaintiffs could have demanded that SGI remedy the problem and could have sold their stock if it was not taken care of to their satisfaction. Plaintiffs allege that they lost the value of their investment in SGI’s stock, and that their damages are separate and distinct from the damages incurred by SGI and Stotler.

Specifically, plaintiffs allege that the accountants breached the contract with SGI, as to which plaintiffs were third-party beneficiaries, that the accountants were negligent in performing their services, and that the accountants recklessly misrepresented the financial condition of SGI and its subsidiaries knowing that the plaintiffs would rely on the audit reports. As noted, the circuit court dismissed the plaintiffs’ complaint for lack of standing and for failure to state a breach of contract claim. The plaintiffs filed a timely appeal.

Standing

In this court, the plaintiffs argue that they have standing to prosecute their claims because the accountants owed contract and tort duties to both SGI and the plaintiffs, and because the accountants caused direct injury to both SGI and to the plaintiffs. The plaintiffs state that they are not complaining of the diminution in the value of their shares of stock, but are suing for the lost opportunity to make a fully informed investment decision regarding their continued ownership of SGI stock.

The accountants argue on appeal that the plaintiffs’ claims are in fact claims for the diminution in the value of their stock, are thus derivative, and were properly dismissed. The accountants also argue that they did not owe any direct duty to the plaintiffs and that the plaintiffs have failed to allege a separate and distinct injury required to maintain an independent action. Whether a party has standing to sue is a question of law (Kohls v. Maryland Casualty Co. (1986), 144 Ill. App. 3d 642, 644) which we review de novo (Uhwat v. Country Mutual Insurance Co. (1984), 125 Ill. App. 3d 295, 302). The shareholder standing rule

“is a longstanding equitable restriction that generally prohibits shareholders from initiating actions to enforce the rights of the corporation unless the corporation’s management has refused to pursue the same action for reasons other than good-faith business judgment. [Citation.] There is, however, an exception to this rule allowing a shareholder with a direct, personal interest in a cause of action to bring suit even if the corporation’s rights are also implicated.” (Franchise Tax Board v. Alcan Aluminum Ltd. (1990), 493 U.S. 331, 336, 107 L. Ed. 2d 696, 704, 110 S. Ct. 661, 665.)

The plaintiffs cite Zokoych v. Spalding (1976), 36 Ill. App. 3d 654, in support of their argument. Zokoych states:

“Where there is no showing that plaintiff himself had been injured in any capacity other than in common with his fellow stockholders, the cause of action belongs to the corporation [citation], and a stockholder may not seek relief on his own behalf. However, this general principle has no application where the wrongful acts are not only against the corporation but are also violations of a duty arising from a contract or otherwise, and owed directly by the wrongdoer to the stockholders. [Citation.] A suit brought by a stockholder upon a personal claim is by its nature distinguishable from a proceeding to recover damages or other relief for the corporation. [Citation.] Not every allegation of wrongdoing is a Simon-pure charge of individual injury, but a court must preliminarily determine if the ‘gravamen’ of the pleadings states injury to the plaintiff upon an individual claim as distinguished from an injury which indirectly affects the shareholders or affects them as a whole.” (Zokoych, 36 Ill. App. 3d at 663.)

The plaintiffs rely on both Zokoych and the case of Mann v. Kemper Financial Cos. (1992), 247 Ill. App. 3d 966. Each case is distinguishable.

In Zokoych, the plaintiff, who was one of two stockholders in a small tool company, sued the second stockholder and others alleging that the second stockholder did not return the plaintiffs pledged stock in the company in breach of an agreement between them, removed the plaintiff as president of the company and stopped paying his salary, and removed the company’s equipment from its premises. (Zokoych, 36 Ill. App. 3d at 657.) The plaintiff claimed that he was deprived of collecting debts the company owed to him, that his business reputation had been destroyed and that he was wrongfully denied his salary and benefits. (Zokoych, 36 Ill. App. 3d at 659.) The court found, in an abbreviated discussion, that the plaintiff had a cause of action separate from any cause of action belonging to the tool company. Zokoych, 36 Ill. App. 3d at 663-64.

The Zokoych plaintiff clearly was injured in a personal capacity, apart from his role as a shareholder in the tool company. He lost his position at the company, his salary and his business reputation. Moreover, the court in that case found that the second stockholder owed a fiduciary obligation to the plaintiff to act honestly and with the utmost good faith in running the company. (Zokoych, 36 Ill. App. 3d at 666.) Thus, Zokoych concerns an allegation of injury upon a personal claim and a duty directly owed by the second stockholder to the plaintiff. Zokoych’s unique factual situation readily distinguishes that case from the present one.

In Mann, investors in mutual funds sued the funds’ manager and sponsor alleging breach of various State and Federal statutes, common-law fraud and breach of fiduciary duty. (Mann, 247 Ill. App. 3d at 968-73.) The investors claimed that the defendants’ speculative and wrongful conduct in managing the funds and their misrepresentations in the funds’ prospectuses caused the investors to invest in the funds and retain their investments. (Mann, 247 Ill. App. 3d at 971-73.) The court held that the investors had standing to assert their fraud and breach of fiduciary duty claims, among others, and that the claims were not derivative. Mann, 247 Ill. App. 3d at 974-84.

Mann is distinguishable for two reasons. First, there is no fiduciary duty between the plaintiffs here and the accountants, as the Mann court found there was between the investors and the mutual fund managers. (Mann, 247 Ill. App. 3d at 980.) The plaintiffs here do not allege that a fiduciary relationship exists. Second, the Mann court found, with regard to the fraud count, that only the investors, not the mutual funds themselves, could allege that misrepresentations in the prospectuses induced them to invest. (Mann, 247 Ill. App. 3d at 979-80.) The plaintiffs here do not complain of fraud inducing them to invest, or any similar kind of intended or reckless inducement aimed particularly at them as shareholders. In Mann, the fraud was directed at investors in order that their investments would enrich the defendants. Here, the accountants allegedly made the same misrepresentations to both the plaintiffs and SGI about the net capital requirements. Thus, the investors in Mann were the only persons who could bring the claims, while in this case either the plaintiffs or SGI could logically pursue claims against the accountants arising from the identical misrepresentations. Mann is not on point here.

We neither have been cited to, nor have we found, a case factually identical to this one. However, a case indirectly on point is Holland v. Arthur Andersen & Co. (1984), 127 Ill. App. 3d 854. In that case, the trustee in bankruptcy for a bankrupt company sued one of the company’s independent accountants alleging breach of contract and misrepresentation arising out of an audit. The trustee claimed that the accounting firm’s failure to disclose certain information precluded the company, its investors, and its creditors from taking steps to block the company’s demise. The accounting firm argued that the trustee had no standing to bring the action because the cause of action belonged to the company’s stockholders and creditors. (Holland, 127 Ill. App. 3d at 861.) The court held that the cause of action belonged to the company and, consequently, that the suit could be maintained by the trustee. (Holland, 127 Ill. App. 3d at 861-62.) We agree with Holland that in a situation like the one presented here and in Holland the corporation is the entity directly harmed by the accounting firm’s alleged misdeeds. The corporation ceases to be a going concern, which necessarily results in the shareholders’ stock becoming devalued. The corporation is the logical entity to pursue a claim against the accountants and to share its recovery with its stockholders if it prevails.

The nature of the claim brought in Holland is very similar to the essence of the claim brought here, and we think Holland’s determination that the cause of action belonged to the corporation is correct. We are not led astray by the plaintiffs’ argument that they are complaining not of the diminution of their stock’s value but of the loss of an opportunity to make informed investment decisions. The real damage suffered by the plaintiffs here, and by SGI, is that SGI’s stock becomes worthless due to the accountants’ alleged mistakes. That the plaintiffs were deprived of the opportunity to dump their stock before word got out of SGI’s precarious financial condition does not give the plaintiffs a cause of action in their own right. The plaintiffs are emphasizing a distinction without a meaningful difference.

As stated by Zokoych, the general rule that shareholders ordinarily do not have standing to sue when both they and the corporation are injured does not apply when the third party’s wrongful acts arise out of a duty owed directly by the third party to the stockholder. (Zokoych, 36 Ill. App. 3d at 663.) This direct duty has been termed a “special contractual duty *** between the wrongdoer and the shareholder.” (Twohy v. First National Bank (7th Cir. 1985), 758 F.2d 1185, 1194.) No contractual duty existed in this case between the plaintiffs and the accountants that was any different from the duty existing between the accountants and SGI. Thus, we believe no “special contractual duty” existed between the plaintiffs and the accountants. As the Zokoych court cautioned, we must first determine whether the “gravamen” of the complaint “states injury to the plaintiff upon an individual claim as distinguished from an injury which indirectly affects the shareholders or affects them as a whole.” (Zokoych, 36 Ill. App. 3d at 663.) The plaintiffs allege an injury to the corporation which affects them only indirectly. The plaintiffs have no standing under Illinois law to pursue their action against the accountants.

Because of our decision on the standing issue, we need not determine whether the plaintiffs have stated viable causes of action for breach of contract, negligence and fraud. For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.

Affirmed.

DOYLE and COLWELL, JJ., concur.