{ "id": 2183335, "name": "BARRY SCHRAGER, Plaintiff-Appellant, v. NORTH COMMUNITY BANK et al., Defendants-Appellees", "name_abbreviation": "Schrager v. North Community Bank", "decision_date": "2002-01-14", "docket_number": "No. 1\u201499\u20143727", "first_page": "696", "last_page": "711", "citations": [ { "type": "official", "cite": "328 Ill. App. 3d 696" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "248 Ill. App. 3d 1000", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2945227 ], "year": 1993, "pin_cites": [ { "page": "1006" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/248/1000-01" ] }, { "cite": "117 Ill. App. 3d 600", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3481920 ], "year": 1983, "pin_cites": [ { "page": "606" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/117/0600-01" ] }, { "cite": "120 Ill. App. 3d 314", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3594695 ], "year": 1983, "pin_cites": [ { "page": "319" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/120/0314-01" ] }, { "cite": "128 Ill. 2d 179", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3228480 ], "year": 1989, "pin_cites": [ { "page": "195" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/128/0179-01" ] }, { "cite": "118 Ill. App. 3d 401", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5658560 ], "year": 1983, "pin_cites": [ { "page": "409" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/118/0401-01" ] }, { "cite": "291 Ill. App. 3d 495", "category": "reporters:state", "reporter": "Ill. 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App. 3d 416", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3568015 ], "year": 1985, "pin_cites": [ { "page": "424" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/139/0416-01" ] }, { "cite": "237 Ill. App. 3d 614", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5162310 ], "year": 1992, "pin_cites": [ { "page": "618" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/237/0614-01" ] }, { "cite": "216 Ill. App. 3d 231", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5290305 ], "year": 1991, "pin_cites": [ { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/216/0231-01" ] }, { "cite": "242 Ill. App. 3d 10", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5117774 ], "year": 1993, "pin_cites": [ { "page": "16" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/242/0010-01" ] }, { "cite": "256 Ill. App. 3d 429", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5383601 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "432-33" }, { "page": "432-33" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/256/0429-01" ] }, { "cite": "10 Ill. App. 3d 1000", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5396767 ], "year": 1973, "pin_cites": [ { "page": "1003" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/10/1000-01" ] }, { "cite": "102 Ill. App. 3d 483", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3071957 ], "year": 1981, "pin_cites": [ { "page": "490" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/102/0483-01" ] }, { "cite": "846 F.2d 387", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1788322 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "394" }, { "page": "393" } ], "opinion_index": 0, "case_paths": [ "/f2d/846/0387-01" ] }, { "cite": "64 Ill. App. 3d 190", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3333482 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "197" }, { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/64/0190-01" ] }, { "cite": "245 Ill. App. 3d 258", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 45736 ], "weight": 10, "year": 1998, "pin_cites": [ { "page": "571" }, { "page": "571" }, { "page": "569-70" }, { "page": "571" }, { "page": "571-72" }, { "page": "572" }, { "page": "572" }, { "page": "573" }, { "page": "573" }, { "page": "575" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/295/0567-01" ] }, { "cite": "171 Ill. App. 3d 54", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3618060 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "68" }, { "page": "68" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/171/0054-01" ] }, { "cite": "326 Ill. App. 3d 642", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1281414 ], "weight": 4, "year": 2001, "pin_cites": [ { "page": "649" }, { "page": "652" }, { "page": "652" }, { "page": "652" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/326/0642-01" ] }, { "cite": "317 Ill. App. 3d 1104", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1026019 ], "year": 2000, "pin_cites": [ { "page": "1110" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/317/1104-01" ] }, { "cite": "188 Ill. 2d 17", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 536033 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "31" }, { "page": "31" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/188/0017-01" ] }, { "cite": "317 Ill. App. 3d 764", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1026024 ], "year": 2000, "pin_cites": [ { "page": "769" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/317/0764-01" ] }, { "cite": "179 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801344 ], "weight": 2, "year": 1997, "pin_cites": [ { "page": "7" }, { "page": "7" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0001-01" ] }, { "cite": "296 Ill. App. 3d 503", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 222654 ], "weight": 4, "year": 1998, "pin_cites": [ { "page": "508" }, { "page": "511" }, { "page": "511" }, { "page": "511" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/296/0503-01" ] }, { "cite": "92 B 1534", "category": "reporters:state", "reporter": "Barb.", "year": 1992, "opinion_index": 0 } ], "analysis": { "cardinality": 1177, "char_count": 33146, "ocr_confidence": 0.767, "pagerank": { "raw": 3.054602796983767e-07, "percentile": 0.8561728888440986 }, "sha256": "a138e500bc1d4982d20d042b2ed0d71249d5d38029aa8abd9b49998e986ca8e4", "simhash": "1:0afbd62c072d5656", "word_count": 5229 }, "last_updated": "2023-07-14T17:11:21.532369+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "BARRY SCHRAGER, Plaintiff-Appellant, v. NORTH COMMUNITY BANK et al., Defendants-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE COHEN\ndelivered the opinion of the court:\nOn June 6, 1997, plaintiff Barry Schrager filed a complaint alleging negligence and fraud against defendants North Community Bank, its president, Scott Yelvington, and its chairman and chief executive officer (CEO), Peter Fasseas. Defendants answered plaintiffs complaint and later moved for summary judgment. In considering defendants\u2019 motion for summary judgment, the trial court agreed with defendants\u2019 characterization of plaintiffs fraud count as alleging both fraudulent misrepresentation and fraudulent concealment of material fact. The trial court further agreed that plaintiffs negligence count alleged negligent misrepresentation. On October 20, 1999, the trial court granted defendants\u2019 motion for summary judgment on all claims.\nOn appeal, plaintiff alleges that the trial court erred in granting summary judgment where it determined that: (1) defendants\u2019 statements were opinions rather than representations of material fact; (2) defendants had no duty to disclose certain facts to plaintiff; and (3) plaintiffs reliance on defendants\u2019 statements was not justifiable as a matter of law.\nFor the reasons set forth below, we hold that questions of material fact sufficient to withstand summary judgment exist with respect to each of plaintiffs asserted errors. We therefore reverse the judgment of the trial court and remand this cause for further proceedings.\nBACKGROUND\nOn March 11, 1993, as a prospective investor in the 1255 State Parkway Building Limited Partnership (1255 Partnership), a real estate venture of Jeffery E. Grossman and Donald Grauer, plaintiff Barry Schrager attended a meeting held at North Community Bank arranged by Grossman to introduce defendants Scott Yelvington and Peter Fasseas to Schrager. At the time, Yelvington was president of North Community Bank. Fasseas was the bank\u2019s chairman and CEO. Both Grossman and Grauer were present at the meeting. The meeting was held in Yelvington\u2019s office at the bank.\nThe record reflects that at the time of the meeting on March 11, North Community Bank held a $600,000 mortgage (of which $420,000 had been disbursed) on property owned by the 1255 Partnership. The note on that mortgage, executed on February 24, 1992, was guaranteed by both Grauer and Dr. Lawrence Metrick. Dr. Metrick was Gross-man\u2019s daughter\u2019s father-in-law. At his deposition, Grossman testified that Hetrick had contacted him by telephone and informed Grossman that Hetrick was \u201cgetting cold feet\u201d and wished to withdraw his guaranty. In search of a guarantor to replace Hetrick, Grossman testified that in late 1992 he provided Schrager with a prospectus. The prospectus outlined Grossman\u2019s proposal that Grossman proposed that Schrager purchase a 50% share in the 1255 Partnership for $375,000 and agree to guarantee the note on the mortgage in place of Hetrick.\nThe parties dispute both the nature of the Harch 11 meeting and the substance of the matters discussed at the meeting. Defendants claim that the meeting was simply a \u201csocial call,\u201d the purpose of which was merely to introduce Schrager to Yelvington and Fasseas. Defendants maintain that no matters of significant business import were discussed at the meeting. Schrager, however, claims that it was clearly understood among the parties that the purpose of the meeting was to discuss Schrager\u2019s potential investment in the 1255 Partnership.\nGrossman testified at his deposition that when he contacted Yel-vington to arrange the meeting, he informed Yelvington that Schrager was his (and Grauer\u2019s) \u201cnew partner.\u201d According to Schrager, Gross-man also told Yelvington at the start of the Harch 11 meeting that Schrager was a prospective investor in the 1255 Partnership. Schrager stated at his deposition that during the Harch 11 meeting, \u201cYelving-ton asked me what I would like to know about [Grossman] or [Grauer].\u201d Schrager testified that he replied, \u201canything you can tell me about [Grossman, Grauer] or the project.\u201d (Emphasis added.) Schrager testified that in response to his inquiry, Yelvington told him that Grossman and Grauer were \u201cexcellent real estate developers, very good customers of the bank, and very good business men [szc].\u201d Bank chairman and CEO Peter Fasseas, who later joined the meeting, was asked the same question and gave a substantially similar answer. Fasseas added that he was \u201cgood friends\u201d with Grossman and Gross-man\u2019s wife.\nAt his deposition, Yelvington testified that he could not recall whether Schrager made any such inquiry at the Harch 11 meeting. Yelvington further testified, however, that he knew at the time of the Harch 11 meeting that Grossman was bankrupt. In re Jeffrey E. Grossman, 92 B 1534 (filed January 23, 1992). Yelvington was also aware of the fact that the 1255 Partnership\u2019s account at the North Community Bank had been overdrawn at least 57 times during 1992, occasionally in amounts in excess of $10,000. Yelvington further testified that at the time of the March 11 meeting, he was aware that Grossman and Grauer\u2019s planned construction on the 1255 State Parkway premises could not proceed due to disputes both with the building\u2019s condominium association and, more significantly, with the relevant zoning authorities of the City of Chicago.\nSchrager admitted in his deposition that after the March 11 meeting with Yelvington and Fasseas, he made no additional independent inquiry into the financial history of either Grossman or Grauer. Schrager further admitted that about three months prior to the March 11 meeting, he had begun investing approximately $850,000 in three other real estate ventures with Grossman and Grauer. In one of these prior ventures, Schrager retained an attorney to draft an agreement designed to \u201cprotect his interests.\u201d Schrager retained no attorney with respect to investing in any of Grossman and Grauer\u2019s ventures subsequent to the March 11 meeting. During his deposition, in response to counsel\u2019s question about whether Schrager had asked Gross-man or Grauer if either had ever declared bankruptcy, Schrager replied: \u201cThey were portraying themselves as multi-millionaires. That would not even have occurred to me.\u201d\nPlaintiff states that he relied upon defendants\u2019 responses to his inquiry in deciding both to become a guarantor on the 1255 Partnership loan in place of Metrick as well as to invest a total of more than $4 million in the 1255 Partnership and other real estate development deals with Grossman and Grauer.\nSubsequent to the March 11 meeting, the $600,000 mortgage loan on the 1255 Partnership property was refinanced with another bank. As security, Schrager posted on behalf of the 1255 Partnership a letter of credit in the amount of $450,000, executed on December 10, 1993, concurrently with a new note on the refinanced loan. Grauer admitted in his deposition that there was an understanding, of which Grossman had made him aware, between Grossman and the North Community Bank to the effect that upon Schrager\u2019s posting of the letter of credit, the prior guarantee of Dr. Metrick on the original mortgage note would be canceled or released. The record reflects that such a release did in fact occur.\nAccording to Schrager, all properties in which he invested in reliance on the defendants\u2019 endorsement of Grossman and Grauer\u2019s business skills subsequently became worthless. On February 7, 1997, Schrager filed a complaint for damages in the circuit court of Cook County alleging a single count of negligence against defendants. Schrager then amended his complaint by adding a fraud count and sought damages totaling more than $4 million.\nOn June 28, 1999, defendants filed a motion for summary judgment. In their motion, defendants described Schrager\u2019s somewhat confusing amended complaint as setting forth both a negligence claim predicated on a theory of negligent misrepresentation and a fraud claim predicated on theories of fraudulent misrepresentation and fraudulent concealment of material fact. The court adopted defendants\u2019 characterization of plaintiff\u2019s amended complaint and granted defendants\u2019 motion for summary judgment. In so doing, the trial court held that: (1) defendants\u2019 statements to Schrager expressed nonac-tionable opinions rather than material facts; (2) no relationship existed between Schrager and defendants upon which a duty to disclose might be predicated; and (3) Schrager could not prove justifiable reliance on defendants\u2019 statements because he could have discovered the relevant financial information about Grossman and Grauer by asking them directly.\nOn appeal, Schrager argues that the trial court erred in granting defendants summary judgment because defendants\u2019 statements constituted representations of material fact rather than opinions. Schrager further claims that a relationship sufficient to trigger a duty to disclose existed between himself and defendants by virtue of defendants\u2019 \u201cposition of trust and influence.\u201d Finally, Schrager claims that whether his reliance on defendants\u2019 statements was justifiable is a question of fact that was improperly decided by the trial court on summary judgment.\nDefendants respond that the trial court correctly determined that defendants had merely expressed to Schrager their opinions as to the future performance of Grossman and Grauer. Defendants further argue that the trial court properly determined that they had no \u201cspecial or fiduciary relationship with [Schrager]\u201d sufficient to trigger a duty to disclose to Schrager information about Grossman and Grauer\u2019s financial history. Finally, defendants argue that in light of Schrager\u2019s preexisting business relationship with Grossman and Grauer, as well as Schrager\u2019s failure to exercise ordinary prudence in seeking information about the 1255 Partnership investment, plaintiff could not have justifiably relied on defendants\u2019 statements as a matter of law.\nANALYSIS\nI. Standard of Review\nAs this court must determine whether summary judgment was properly granted, our review is de novo. Sims v. Tezak, 296 Ill. App. 3d 503, 508 (1998). \u201cSummary judgment is to be granted only if the pleadings, affidavits, depositions, admissions, and exhibits on file, when reviewed in the light most favorable to the nonmovant, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.\u201d Berlin v. Sarah Bush Lincoln Health Center, 179 Ill. 2d 1, 7 (1997); 735 ILCS 5/2\u2014 1005(c) (West 2000). In conducting our review, \u201cwe are free to consider any pleadings, depositions, admissions, and affidavits on file at the time of the hearing regardless of whether facts contained therein were presented to the trial court in response to the motion for summary judgment.\u201d William J. Templeman Co. v. United States Fidelity & Guaranty Co., 317 Ill. App. 3d 764, 769 (2000). \u201cA triable issue of fact exists where there is a dispute as to a material fact or where, although the facts are not in dispute, reasonable minds might differ in drawing inferences from those facts.\u201d Petrovich v. Share Health Plan of Illinois, Inc., 188 Ill. 2d 17, 31 (1999).\n\u201cSummary judgment is a \u2018drastic means of disposing of litigation and therefore should be allowed only when the right of the moving party is clear and free from doubt.\u2019 [Citation.] Summary judgment must be awarded with caution to avoid preempting a litigant\u2019s right to trial by jury or the right to fully present the factual basis of a case where a material dispute may exist. *** Reversal of [an order granting] summary judgment *** is warranted where, on review, a material issue of fact or an inaccurate interpretation of the law exists.\u201d Anderson v. Alberto-Culver USA, Inc., 317 Ill. App. 3d 1104, 1110 (2000).\nII. Fraudulent and Negligent Misrepresentation\nIn Illinois, a claim of fraudulent misrepresentation \u2014 a form of common law fraud (Miller v. William Chevrolet/Geo, Inc., 326 Ill. App. 3d 642, 649 (2001)) \u2014 requires clear and convincing proof (Niemoth v. Kohls, 171 Ill. App. 3d 54, 68 (1988)) of the following five elements: \u201c(1) a false statement of material fact; (2) knowledge or belief of the falsity by the party making it; (3) an intention to induce the other party to act; (4) action by the other party in reliance on the truth of the statement; and (5) damage to the other party resulting from such reliance. [Citation.]\u201d Neptuno Treuhand-Und Verwaltungsgesellschaft MBH v. Arbor, 295 Ill. App. 3d 567, 571 (1998). Furthermore, plaintiffs reliance must be justifiable to sustain the cause of action. Neptuno, 295 Ill. App. 3d at 571.\nThe elements of negligent misrepresentation are substantially similar to those of fraudulent misrepresentation, except that the required mental state is less stringent. Board of Education of the City of Chicago v. A, C & S, Inc., 131 Ill. 2d 428, 452 (1989). A defendant\u2019s carelessness or negligence in ascertaining the truth or the falsity of his statement is sufficient to sustain a claim of negligent misrepresentation. Board of Education, 131 Ill. 2d at 452. A plaintiff must further allege that the defendant owed a duty to the plaintiff to communicate accurate information. Board of Education, 131 Ill. 2d at 452.\nAs a general rule, the law will not support a misrepresentation claim predicated on an opinion; however, an exception exists where the circumstances suggest that a plaintiff may have justifiably relied on the opinion as though it was a statement of fact. Buttitta v. Lawrence, 346 Ill. 164, 173 (1931). \u201c \u2018Wherever 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, *** the statement clearly becomes an affirmation of the fact within the meaning of the rule against fraudulent misrepresentation. \u2019 \u201d Heider v. Leewards Creative Crafts, Inc., 245 Ill. App. 3d 258, 266 (1993), quoting Perlman v. Time, Inc., 64 Ill. App. 3d 190, 197 (1978). \u201cThus, the general rule is that it is not \u2018the form of the statement which is important or controlling, but the sense in which it is reasonably understood.\u2019 \u201d West v. Western Casualty & Surety Co., 846 F.2d 387, 394 (7th Cir. 1988), quoting W. Keeton, Prosser & Keeton on Torts \u00a7 109, at 755 (5th ed. 1984). \u201cWhether a statement is one of fact or of opinion depends on all the facts and circumstances of a particular case.\u201d West, 846 F.2d at 393, citing Buttitta, 346 Ill. at 173; Duhl v. Nash Realty Inc., 102 Ill. App. 3d 483, 490 (1981); Perlman v. Time, Inc., 64 Ill. App. 3d 190, 197 (1978); Parker v. Arthur Murray, Inc., 10 Ill. App. 3d 1000, 1003 (1973).\nThe trial court held that defendants\u2019 statements were \u201cvalue judgments as described in the Restatement (Second) of Torts \u00a7 538(A)\u201d and that \u201c[e]ven when considering context, the statements remain opinion.\u201d Defendants argue that the trial court correctly relied on this court\u2019s opinion in Neptuno Treuhand-Und Verwaltungsgesellschaft MBH v. Arbor, 295 Ill. App. 3d 567, 569-70 (1998), in ruling that defendants\u2019 statements were opinions.\nIn Neptuno, we held that an employer\u2019s statement \u2014 written in a letter of recommendation \u2014 that a former employee was an \u201cintelligent, industrious and innovative young man\u201d was \u201cmere opinion and *** [could not] form the basis of an action [for fraudulent misrepresentation].\u201d 295 Ill. App. 3d at 571. Both this court in Neptuno and the trial court in the present case quoted the same passage from the Restatement (Second) of Torts to explain how they distinguished between assertions of fact and opinion:\n\u201c \u2018[T]he statement that an automobile is a good car is a relative matter ***. The maker of a statement of this nature will normally be understood as expressing only his judgment and not as asserting anything concerning horsepower, riding qualities or any of the dozen other factors that would influence his judgment.\u2019 \u201d Neptuno, 295 Ill. App. 3d at 571-72, quoting Restatement (Second) of Torts \u00a7 538(A), Explanatory Note, at 83 (1977).\nIn Neptuno, we concluded that \u201c[[Intelligence, innovativeness and an industrious nature are personal qualities and whether they exist in a given individual is a matter upon which individual judgment may be expected to differ,\u201d i.e., a matter of opinion. Neptuno, 295 Ill. App. 3d at 572.\nIn this case, the determination of whether defendants\u2019 statements that Grossman and Grauer were \u201cexcellent real estate developers, very good customers of the bank, and very good business men\u201d constitute statements of opinion or of material fact depends upon the entirety of the circumstances under which they were made. Buttitta, 346 Ill. at 173. Plaintiff argues that defendants\u2019 statements, viewed in the context of Grossman and Grauer\u2019s financial and banking history and defendants\u2019 knowledge of that history, were factual affirmations of the men\u2019s business acumen and are therefore actionable under Illinois law. Kohls, 171 Ill. App. 3d at 68.\nWe agree. Viewing the evidence in the light most favorable to Schrager, we hold that reasonable persons could infer that defendants\u2019 statements denoted a history of sound fiscal management, economic success and financial stability on the part of Grossman and Grauer. Taliaferro v. One Grand Place Venture, 256 Ill. App. 3d 429, 432-33 (1993). Despite the fact that the March 11 meeting was held in Yelvington\u2019s office at the bank during regular business hours, defendants persistently deny that it was a business meeting. Yelvington admitted in his deposition that Grossman told him that Schrager \u201cpotentially would be a partner in the 1255 *** Partnership, and that [Schrager] potentially would be a guarantor on [a] loan\u201d to the 1255 Partnership for several hundred thousand dollars. Although Yelvington claimed that he could not recall whether he had received this information from Grossman before or after the March 11 meeting, in viewing the evidence in the light most favorable to Schrager (Taliaferro, 256 Ill. App. 3d at 432-33), the evidence mandates our concluding for purposes of this analysis that the meeting was for business reasons.\nBoth defendants\u2019 deposition testimony establishes that prior to March 11, 1993, North Community Bank had grouped together Gross-man and Grauer\u2019s multiple business accounts for supervisory purposes and that the bank\u2019s policy required Yelvington to review all overdrafts on those accounts each day. Bank records reflect that Grossman and Grauer frequently made late payments on the $420,000 mortgage loan. Yelvington stated in his deposition that he personally spoke to Grossman and Grauer on multiple occasions about their frequent overdrafts and their frequently returned checks. The record also reflects that Yelvington and Fasseas were both aware that the 1255 Partnership account had been overdrawn at least 57 times in 1992, occasionally in amounts exceeding $10,000. Finally, the record reveals that both Yelvington and Fasseas were aware at the time of the March 11 meeting that Grossman was then a debtor in bankruptcy proceedings.\nViewing the evidence in the light most favorable to plaintiff, we conclude that the defendants possessed actual detailed knowledge of Grossman and Grauer\u2019s financial and banking history. The circumstances surrounding defendants\u2019 statements could reasonably support the inference that defendants were summarizing their detailed knowledge of Grossman and Grauer\u2019s banking history and fiscal management capabilities in response to Schrager\u2019s request for information concerning Grossman, Grauer and the 1255 Partnership. A basis exists in the record upon which a reasonable finder of fact might conclude that the defendants\u2019 statements to Schrager at the March 11 meeting were representations of material fact rather than opinions. In contrast, the record in Neptuno presented no factual basis that might support the conclusion that the writer\u2019s assessment of his former employee as being \u201cintelligent, industrious and innovative\u201d was other than a matter of opinion. Neptuno, 295 Ill. App. 3d at 572. Neptuno is therefore inapposite.\nBecause reasonable minds could draw divergent inferences from the facts before us, we hold that a question of fact exists as to whether defendants\u2019 statements were representations of fact or opinions. Petrovich v. Share Health Plan of Illinois, Inc., 188 Ill. 2d 17, 31 (1999). We therefore reverse the trial court\u2019s order granting summary judgment in favor of defendants on this basis with respect to fraudulent misrepresentation and negligent misrepresentation. We now turn to the remaining issues on appeal.\nIII. Fraudulent Concealment of Material Fact\nIn Illinois, in order for a plaintiff to prove that the concealment of a fact was a fraudulent misrepresentation, he must prove: \u201c(1) the concealment of a material fact; (2) the concealment was intended to induce a false belief, under circumstances creating a duty to speak [citation]; (3) the innocent party could not have discovered the truth through a reasonable inquiry or inspection, or was prevented from making a reasonable inquiry or inspection, and relied upon the silence as a representation that the fact did not exist; (4) the concealed information was such that the injured party would have acted differently had he been aware of it; and (5) that reliance by the person from whom the fact was concealed led to his injury. [Citation.]\u201d Stewart v. Thrasher, 242 Ill. App. 3d 10, 16 (1993). A plaintiff must further demonstrate justifiable reliance, as well as the existence of \u201ca special or fiduciary relationship\u201d giving rise to a duty to convey accurate information. Neptuno, 295 Ill. App. 3d at 573.\nSchrager served as guarantor of the 1255 Partnership\u2019s loan from its creditors, the defendants. As a general rule, no fiduciary relationship exists between a guarantor and a creditor as a matter of law. Santa Claus Industries, Inc., v. First National Bank of Chicago, 216 Ill. App. 3d 231, 238 (1991). \u201cIf the alleged relationship does not exist as a matter of law, facts from which a fiduciary relationship arises must be pleaded and proved by clear and convincing evidence.\u201d Magna Bank of Madison County v. Jameson, 237 Ill. App. 3d 614, 618 (1992). \u201cThe burden of *** proving the existence of a fiduciary relationship lies with the party seeking relief ***.\u201d Farmer City State Bank v. Guingrich, 139 Ill. App. 3d 416, 424 (1985).\nA duty to disclose material facts may also arise from a confidential relationship in which one party is placed \u201cin a position of influence and superiority over [plaintiff],\u201d by reason of \u201cfriendship, agency or experience.\u201d Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 500 (1996).\nThe trial court held that defendants had no duty to speak because \u201cthere was no fiduciary relationship between the plaintiff and the defendants.\u201d We agree. Nothing in the record supports the existence of a fiduciary duty. Schrager argues, however, that defendants assumed the role of \u201cfinancial advisors\u201d to him and, as a result of that confidential relationship, thereby assumed a position of trust and influence. Specifically, Schrager argues that \u201cby their conduct in advising plaintiff as to the financial history of Grossman and Grauer, defendants voluntarily assumed a duty to do so in a true and accurate fashion.\u201d Plaintiff cites to Union National Bank & Trust Co. of Joliet v. Carlstrom for the proposition that \u201ca party may assume a duty to disclose information accurately by its conduct.\u201d Union National Bank & Trust Co. of Joliet v. Carlstrom, 134 Ill. App. 3d 985, 989 (1985).\nDefendants respond that plaintiff has not proved by clear and convincing evidence that defendants had a duty to speak arising out of a confidential or fiduciary relationship.\nWe first note that, contrary to defendants\u2019 position, the question before us on review of summary judgment is not whether Schrager has proved the existence of the requisite relationship by clear and convincing evidence. That is a question to be determined at trial. \u201cThe purpose of summary judgment is not to try an issue of fact but, rather, to determine whether a triable issue of fact exists.\u201d Luu v. Kim, 323 Ill. App. 3d 946, 952 (2001). \u201cTo withstand a summary judgment motion, the nonmoving party need not prove his case at this preliminary stage but must present some factual basis that would support his claim.\u201d Luu, 323 Ill. App. 3d at 952.\nThe March 11 meeting was held in Yelvington\u2019s office at the North Community Bank. Grossman had informed Yelvington prior to the meeting that Schrager was going to be his and Grauer\u2019s \u201cnew partner.\u201d Grossman and Grauer operated multiple business accounts at the North Community Bank. At the time of the meeting, Yelvington and Fasseas were aware of the status of those accounts, including the number and amount of the overdrafts on the 1255 Partnership account, as well as the number of late payments on the mortgage loan. They were further aware of the fact of Grossman\u2019s bankruptcy. Yelv-ington was also aware that the proposed commercial development at 1255 State Parkway faced serious opposition from both the building\u2019s condominium association and the zoning authorities of the City of Chicago. Also \u2014 significantly\u2014the bank itself had a pecuniary interest in securing Schrager as a guarantor to replace the skittish Metrick on the 1255 Partnership loan.\nAt the March 11 meeting, Yelvington asked Schrager what he wished to know about Grossman and Grauer. In reply, Schrager asked Yelvington directly whether Yelvington could tell him \u201canything *** about [Grossman, Grauer] or the project.\u201d (Emphasis added.) Yelving-ton answered that Grossman and Grauer were \u201cexcellent real estate developers, very good customers of the bank, and very good business men [szc].\u201d Fasseas later joined the meeting, was asked the same question and gave a substantially similar answer. Fasseas added that he was \u201cgood friends\u201d with Grossman and Grossman\u2019s wife.\nViewing the evidence in the light most favorable to Schrager, we must conclude that Schrager sought advice from Yelvington and Fas-seas with respect to Grossman and Grauer\u2019s financial status and business acumen, as well as substantive information about the 1255 State Parkway development project. We hold that the record contains sufficient facts from which a reasonable finder of fact could infer that defendants entered into a relationship of confidence and trust with Schrager, in which defendants\u2019 superior knowledge and experience of Grossman and Grauer\u2019s financial history, as well as the status of the 1255 State Parkway development project, including the necessity of obtaining a fresh guarantor, placed defendants in a position of influence over Schrager. Connick, 174 Ill. 2d at 500-01. The existence of such a relationship would have been sufficient to trigger in defendants a duty to accurately disclose facts material to Schrager\u2019s inquiry. Neptuno Treuhand-Und Verwaltungsgesellschaft MBH v. Arbor, 295 Ill. App. 3d 567, 573 (1998).\nThus, questions of fact exist with respect to defendants\u2019 duty to disclose. The trial court\u2019s order granting summary judgment in favor of defendants on this basis as to fraudulent concealment is reversed.\nIV Justifiable Reliance\nFailure to prove justifiable reliance is fatal to claims of fraudulent misrepresentation, negligent misrepresentation and fraudulent concealment of material fact. Neptuno, 295 Ill. App. 3d at 575. This court has explicitly held that \u201cjustifiable reliance *** is a question of fact\u201d that is \u201cto be determined by the finder of fact and not the by the trial court as a matter of law.\u201d Sims v. Tezak, 296 Ill. App. 3d 503, 511 (1998). Whether plaintiffs reliance is justifiable depends on the circumstances. \u201c[A]ll of the facts that the plaintiff knew, as well as those facts the plaintiff could have learned through the exercise of ordinary prudence, are taken into account.\u201d Simon v. Wilson, 291 Ill. App. 3d 495, 505 (1997). The question is whether, under the circumstances and \u201cin light of the information open to [the plaintiff], *** the law may properly say that [the] loss is his own responsibility.\u201d Chicago Title & Trust Co. v. First Arlington National Bank, 118 Ill. App. 3d 401, 409 (1983). Our supreme court has held that \u201cone is justified in relying upon the representations of another, without independent investigation, where the person to whom the representations are made does not have the same ability to discover truth as the person making the representations.\u201d Gerill Corp. v. Jack L. Hargrove Builders, Inc., 128 Ill. 2d 179, 195 (1989).\nIn assessing the reasonableness of an injured party\u2019s reliance in cases of fraud and dishonesty, this court has offered the following guidance:\n\u201cIllinois law has long held that, where the representation is made as to a fact actually or presumptively within the speaker\u2019s knowledge, and contains nothing so improbable as to cause doubt of its truth, the hearer may rely upon it without investigation, even though the means of investigation were within the reach of the injured party and the parties occupied adversary positions toward one another.\u201d Sims v. Tezak, 296 Ill. App. 3d 503, 511 (1998).\n\u201c \u2018[W]here the person making the statement has inhibited plaintiffs inquiries by *** creating a false sense of security,\u2019 the failure to inquire into facts that could be made available to the plaintiff is not fatal. [Citation.]\u201d Miller v. William Chevrolet/Geo, Inc., 326 Ill. App. 3d 642, 652 (2001), quoting Carter v. Mueller, 120 Ill. App. 3d 314, 319 (1983).\nIn the present case, Schrager argues that the trial court improperly disposed of the issue of justifiable reliance by summary judgment. Schrager states that because defendants were officers of the bank, they had \u201cimmediate access to the financial history of Gross-man and Grauer\u201d with the bank. By virtue of this access, Schrager argues, defendants\u2019 statements created in him a sense of security and assuaged any doubts he might have had about Grossman and Grauer. Sims, 296 111. App. 3d at 511.\nDefendants reply that plaintiff\u2019s reliance was not justifiable because his conduct was not reasonable under the circumstances. Defendants argue that Schrager failed to exercise ordinary. prudence by not undertaking an independent investigation of Grossman and Grauer\u2019s financial history. Defendants further argue that Schrager had ample opportunity to discover the facts of Grossman and Grauer\u2019s financial history. As a result, defendants argue, Schrager was precluded from relying on their statements as a matter of law.\nWe disagree. Whether Schrager was required, in the face of defendants\u2019 assurances, to undertake an independent investigation of Grossman and Grauer is the heart of the issue. This court has stated that whether reliance is justified is a question of fact. Sims, 296 Ill. App. 3d at 511. The law in Illinois is quite clear that what constitutes justifiable reliance will depend upon the surrounding circumstances and facts. Central States Joint Board v. Continental Assurance Co., 117 Ill. App. 3d 600, 606 (1983). \u201cIn this case, a reasonable trier of fact could conclude that [defendants\u2019 statements were] designed to and did create exactly [the] sort of false sense of security\u201d Schrager claims. Miller, 326 Ill. App. 3d at 652; Mitchell v. Skubiak, 248 Ill. App. 3d 1000, 1006 (1993).\nWe conclude that whether Schrager\u2019s reliance on defendants\u2019 statements was justified is a question of fact sufficient to survive summary judgment. Miller, 326 Ill. App. 3d at 652; Berlin v. Sarah Bush Lincoln Health Center, 179 Ill. 2d 1, 7 (1997). We therefore reverse the trial court\u2019s order granting summary judgment in favor of defendants with respect to justifiable reliance.\nCONCLUSION\nFor the foregoing reasons, the trial court\u2019s order granting summary judgment in favor of defendants is reversed, and the cause is remanded for proceedings consistent with this opinion.\nReversed and remanded.\nMcNULTY and COUSINS, JJ., concur.\nIn their brief, defendants concede that Yelvington made the statements at issue.\nIf, on remand, defendants\u2019 statements are found to be opinions, an additional fact question is presented as to whether defendants\u2019 opinions were expressed as \u201caffirmative fact[s] material to the transaction\u201d and were thus actionable. Heider v. Leewards Creative Crafts, Inc., 245 Ill. App. 3d 258, 265 (1993). If defendants\u2019 statements are found to be representations of fact, then the trier of fact must further determine their materiality. Connick v. Suzuki Motor Co., 174 Ill. 2d 482, 505 (1996); Board of Education of the City of Chicago v. A, C & S, Inc., 131 Ill. 2d 428, 452 (1989).", "type": "majority", "author": "PRESIDING JUSTICE COHEN" } ], "attorneys": [ "David A. Novoselsky and Linda A. Bryceland, both of David A. Novoselsky & Associates, of Chicago, for appellant.", "William R Quinlan, John F. Kennedy, William J. Quinlan, and Katherine T. Hartmann, all of Quinlan & Grisham, Ltd., and George D. Karacazes and Nicholas Geroulis, both of Martin & Karacazes, Ltd., both of Chicago, for ap-pellees." ], "corrections": "", "head_matter": "BARRY SCHRAGER, Plaintiff-Appellant, v. NORTH COMMUNITY BANK et al., Defendants-Appellees.\nFirst District (1st Division)\nNo. 1\u201499\u20143727\nOpinion filed January 14, 2002.\nRehearing denied April 17, 2002.\nDavid A. Novoselsky and Linda A. Bryceland, both of David A. Novoselsky & Associates, of Chicago, for appellant.\nWilliam R Quinlan, John F. Kennedy, William J. Quinlan, and Katherine T. Hartmann, all of Quinlan & Grisham, Ltd., and George D. Karacazes and Nicholas Geroulis, both of Martin & Karacazes, Ltd., both of Chicago, for ap-pellees." }, "file_name": "0696-01", "first_page_order": 714, "last_page_order": 729 }