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03/27/97 OAK PARK TRUST & SAVINGS BANK v.

March 27, 1997

OAK PARK TRUST & SAVINGS BANK, AS TRUSTEE UNDER TRUST AGREEMENT DATED NOVEMBER 1, 1985, AND KNOWN AS TRUST NO. 9585, AND JOHN R. EPIFANIO, PLAINTIFFS-APPELLEES AND CROSS-APPELLANTS,
v.
INTERCOUNTY TITLE COMPANY OF ILLINOIS AND STEWART TITLE GUARANTY COMPANY, DEFENDANTS-APPELLANTS AND CROSS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE KENNETH L. GILLIS, JUDGE PRESIDING.

Released for Publication May 12, 1997.

The Honorable Justice Hoffman delivered the opinion of the court. Hartman, P.j., and South, J., concur.

The opinion of the court was delivered by: Hoffman

The Honorable Justice HOFFMAN delivered the opinion of the court:

The plaintiffs, Oak Park Trust & Savings Bank, as trustee under Trust No. 9585 (Oak Park Bank) and John R. Epifanio, initiated this action against the defendants, Intercounty Title Company of Illinois (Intercounty) and Stewart Title Guaranty Company (Stewart), claiming that the defendants, as title insurers, breached their contract and made fraudulent misrepresentations by failing to inform the plaintiffs of certain liens on a parcel of real estate. The trial court entered summary judgment in favor of the plaintiffs on the breach of contract claim and in favor of the defendants on the fraud claim. The defendants appeal summary judgment on the breach of contract claim. The plaintiffs cross-appeal only from the trial court's denial of prejudgment interest. We reverse and remand.

Prior to November 1985, Epifanio agreed to purchase a piece of property from his nephew. The attorney who represented Epifanio in this transaction ordered a title commitment from Intercounty and received this document sometime prior to the closing on November 18, 1985. Defendant Stewart issued the title commitment, effective October 31, 1985, which contained the following pertinent language under the proposed exceptions:

"1. General Real Estate Taxes for the year 1985. Tax Number 16-07-302-005, Volume 141.

Note: The amount of the 1984 taxes was $6,550.82.

Note: The 1985 taxes are not yet due and payable.

Note: The 1982 taxes were sold September 20, 1984, for the amount of $8,242.00, to Phoenix Bond and Indemnity Company (Phoenix)."

After Epifanio learned of the sale of the 1982 taxes, he renegotiated the sales price of the property with his nephew in order to account for the cost to redeem the 1982 taxes purchased by Phoenix.

Epifanio's attorney testified in his deposition that, shortly after receiving the commitment and prior to the closing, he contacted Walter Joy, an Intercounty representative, to request that Intercounty order an estimate of redemption. According to the attorney, Joy gave his assurances that there were no liens for 1983 and 1984 real estate taxes. Joy allegedly agreed to mail the estimate of redemption to Epifanio's attorney and confirmed that the parties could close as scheduled. The attorney said he inferred from their conversation that Joy had the estimate of redemption in front of him, but he could not verify this fact. Epifanio's attorney presented an estimate, dated November 14, 1985, which he allegedly received in the mail from Intercounty after the parties had closed and Epifanio had already redeemed the property.

Joy's affidavit stated that he did not recall either ordering or being asked to order the estimate of redemption for Epifanio's attorney. He further stated that he did not possess, nor did he ever imply that he possessed, a completed estimate of redemption at any time during their telephone conversations. Joy also denied stating that there were no liens for the 1983 and 1984 real estate taxes.

The closing took place on November 18, 1985. On November 19, Epifanio went to redeem the property and pay the 1982 taxes. When he ordered an estimate of redemption, he learned, allegedly for the first time, that Phoenix had also paid the 1983 and 1984 taxes, resulting in the additional sum of $16,366.69 due in order to redeem the property. Epifanio paid this additional amount along with the amount due for the 1982 taxes. He thereafter made demand upon the defendants to reimburse him for ...


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