dissenting:
I respectfully dissent and would affirm the trial court. The relationship between Power and Smith was created after Smith informed Power of his extensive experience bidding and performing sewer, water, and storm drain jobs in California and Illinois. Smith testified the size of the jobs ranged from a few thousand dollars to $300,000 and the jobs were performed for developers and public works projects. This specialized experience did provide Smith with knowledge unavailable to Power, a plumbing contractor, and this knowledge or expertise was a consideration in forming the business relationship. As such, the trial court found that when Smith assured Power that the altered bid would still allow the job to be profitable, Power accepted this assurance as a fact, not an opinion.
The record supports the trial court’s finding that Smith made a false statement of material fact, and case law supports the trial court’s finding that the profitability of the project was not an opinion but an assertion of fact. In Duhl, the court found that “[wjherever a party states a matter which might otherwise be only an opinion but does not state it as the expression of the opinion of his own but as an affirmative fact material to the transaction, so that the other party may reasonably treat it as a fact and rely upon it as such, then the statement clearly becomes an affirmation of the fact within the meaning of the rule against fraudulent misrepresentation. Statements of value are common examples, and where made in pursuance of a scheme on the part of the defendant to induce plaintiff to trade with him[,] such statements constitute fraud and deceit.” Duhl, 102 Ill. App. 3d at 489, 429 N.E.2d at 1273. In the instant case, Smith held himself out as having special knowledge unavailable to Power and, therefore, like the real estate agent in Duhl, Smith’s assertions were fact and not opinion.
Further, the majority states that “Power participated in calculating the bids and had very definite opinions about the bid in this case.” 337 Ill. App. 3d at 833. I agree. However, Power’s participation and opinions regarding this bid were of no consequence when, as the trial court found, Smith changed the bid without Power’s knowledge or consent. Therefore, the trial court’s ruling was not against the manifest weight of the evidence, and I would affirm.