dissenting:
I respectfully dissent from the decision of my colleagues and would reverse the order dismissing the complaint and remand the cause for a trial on the merits.
The majority opinion is based in part on contract law. My colleagues hold that the contract plainly, clearly and unambiguously provides for proration on the basis of the most recently ascertainable tax, that the tax could not be ascertained solely on the basis of assessed value, and that the parties therefore agreed to prorate using the 1979 tax bill. In so holding, the majority appears to agree with defendant’s argument that plaintiffs are merely attempting to alter the terms of the contract.
However, I would not resort to contract law to decide this case and do not believe it is applicable. Plaintiffs’ action is not based on the contract. Rather, it is based on fraud, an action sounding in tort. The formation of the contractual relationship and the conveyance merely demonstrate the necessary elements of reliance and damages essential to proof of fraud. (Reimer v. Leshtz (1980), 90 Ill. App. 3d 980, 414 N.E.2d 114.) Although I agree with the majority’s interpretation of the term “most recently ascertainable tax,” I find that the interpretation is irrelevant to the appeal because it is a matter of contract law which, as noted above, is not the basis for the action. Thus, the issue before this court is whether plaintiffs stated a cause of action for fraud.
My colleagues have found that the complaint did not state a cause of action based on fraud. They reason that defendant had no duty to advise plaintiffs of the change in assessed value because the information was equally accessible to plaintiffs in public records. They further rely on the court’s statement in Posner v. Davis (1979), 76 Ill. App. 3d 638, 395 N.E.2d 133, that in the absence of a fiduciary or confidential relationship, silence alone does not amount to fraud. I disagree with the majority’s reasoning.
First, I believe defendant had a duty to disclose the reassessed value. The trend in the law regarding the sale of used homes is toward the erosion of the doctrine of caveat emptor. (Posner v. Davis (1979), 76 Ill. App. 3d 638, 395 N.E.2d 133, and cases cited therein.) Although most of the cases dealing with the amelioration of the doctrine involve failure to disclose material defects in the home of which the seller was aware at the time of closing, I would extend the underlying theory and principles to cases where the misrepresentations and nondisclosures affect material terms of the sales contract. The concealed fact in this case was a material fact because had plaintiffs known of the increased assessment, they most assuredly would have acted differently in negotiating the tax proration clause in the contract. Perlman v. Time, Inc. (1978), 64 Ill. App. 3d 190, 380 N.E.2d 1040.
Also, the fact that the information was a matter of public record should not preclude the maintenance of an action for fraud. As alleged in the complaint, defendant knew prior to signing the contract that the assessed value of the property had been increased 50%, yet she failed to inform plaintiffs. Defendant was allegedly the party possessed of knowledge and capable of making representations to plaintiffs. In the absence of circumstances putting reasonable men on inquiry, plaintiffs were justified in relying on the representations without further inquiry where the misrepresentation concerned a matter assumed to be within the knowledge of the defendant. (Keeshin v. Levin (1975), 31 Ill. App. 3d 790, 334 N.E.2d 898.) Additionally, plaintiffs should not be required to test the accuracy of the representations where defendant has lulled him into a feeling of false security. (Mother Earth, Ltd. v. Strawberry Camel, Ltd. (1979), 72 Ill. App. 3d 37, 390 N.E.2d 393.) Regarding the majority’s finding that plaintiff must plead the existence of a fiduciary or confidential relationship, I would note that a fiduciary duty is not necessary for claims based on fraud. M. J. McCarthy Motor Sales Co. v. Van C. Argiris & Co. (1979), 78 Ill. App. 3d 725, 396 N.E.2d 1253.
For these reasons, I find that plaintiffs’ complaint stated a cause of action based on fraud. Plaintiffs should be allowed their day in court to prove their allegations.