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City of Chicago v. Roppolo

OPINION FILED MARCH 22, 1983.

THE CITY OF CHICAGO ET AL., PLAINTIFFS-APPELLANTS,

v.

ANTHONY ROPPOLO ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Reginald J. Holzer, Judge, presiding.

PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 28, 1983.

This action arises from the demolition of the Henry W. Rincker House, a two-story frame residence on Chicago's far northwest side, which had been declared a landmark by the Commission on Chicago Historic and Architectural Landmarks (Landmark Commission).

Plaintiffs, the city of Chicago and a class comprised of all its citizens, brought this action for the imposition of a constructive trust on the property on which the house stood and for damages. The constructive trust was to be measured by the extent of the savings in restoration costs to Anthony Roppolo, the property owner, generated by the house's demolition. In addition to Roppolo, the suit named as defendants the Northwest National Bank of Chicago, as trustee under trust agreement dated March 1, 1978, and known as Trust 4525, Cirro Wrecking Company (Cirro), the wrecking company which performed the demolition, and Lela Cirrincione, the owner of Cirro. After a bench trial, the trial court held that plaintiffs failed to prove any of the defendants guilty of a fraud or that any defendant had breached a fiduciary duty, and that plaintiffs had not proved damages or established their right to a constructive trust. The pertinent evidence, some of which was stipulated to, may be summarized as follows.

In March 1978, defendant Anthony Roppolo and a business partner purchased over five acres of land located at the intersection of Devon, Milwaukee and Nagle avenues in Chicago. The property was improved with seven structures: two grocery stores, a drug store, a laundromat, a hamburger stand, the Rincker House and the tool shed adjacent to the house. The Rincker House was occupied at the time of purchase, but thereafter vacated and the windows boarded. Roppolo was a 50% owner and agent of the land trust which paid $1,600,000 for the property. In early April of 1978, Roppolo entered into a contract with Joseph Romono to demolish the Rincker House. The application for a demolition permit showed the address of the house at 6366 North Milwaukee Avenue. The application was processed through the various city departments which must approve any demolition permit. On May 1, 1978, the commissioner of the Department of Buildings notified Romono that the permit would not be issued. The owners' complaint for a writ of mandamus against the commissioner was dismissed by the trial court. An appeal from the trial court's action was dismissed by this court for want of prosecution. In July 1978, the city, with the consent of Roppolo, demolished the shed on said property.

On June 5, 1978, the Landmark Commission voted to begin proceedings to have the property, including the Rincker House, declared an official Chicago landmark. Roppolo was represented during these proceedings by an attorney. On April 10, 1979, the Landmark Commission recommended to the city council that the property, including the Rincker House, be designated as a landmark. On August 10, 1979, the city council passed an ordinance designating the property, including the Rincker House, as a Chicago historical landmark.

In April of 1979, Romono, on behalf of Roppolo, applied the second time for a permit to demolish the house. A permit was issued on May 7, 1979, and revoked on the same day by the commissioner of the Department of Buildings.

On February 29, 1980, Roppolo applied for a zoning amendment in order to develop the tract on which the house stood. Hearings on the proposed amendment were held on July 10, 1980, by the Chicago plan commission. The application was modified by the agreement of Roppolo and the plan commission to include a provision that Roppolo would retain the house as a designated Chicago Landmark, move it to another part of the tract, and restore and reconstruct the house at the direction of the Landmark Commission. This development was to be known as "Landmark Square." The plan commission then approved the modified plan of development.

Prior to July 30, 1980, Roppolo asked Mario Rizzi to inquire of various demolition contractors whether any of them would be willing to apply for a permit to demolish the Rincker House. Rizzi spoke to Cirro. Mrs. Cirrincione, owner of Cirro, agreed to apply for a permit only if the company was given a contract to perform the actual demolition. Roppolo thereupon authorized Rizzi to enter into the contract with Cirro for the demolition of the house. Thereafter, Mrs. Cirrincione began the application process.

On July 30, 1980, Mrs. Cirrincione went to the permit control desk of the city's Department of Inspectional Services, Plans, and Examinations (formerly the Department of Buildings) with a partially completed application for a demolition permit. Annette Bueck, an employee of the department, made an entry in the permit application received log showing the receipt of a permit application to demolish the building at 6366 North Milwaukee Avenue. Mrs. Cirrincione then went to the Department of Streets and Sanitation to register the application. That department requires a two-day notice before a sidewalk permit can be issued. No demolition permit can be issued without a sidewalk permit.

Shortly after these preliminary steps in the application process were completed, Alderman Roman Pucinski, in whose ward the property is located, received notice of the application to demolish the structure at 6366 North Milwaukee. Pucinski telephoned the permit control desk to inquire about the application and was informed that the structure was a landmark and that no permit would be issued. At about the same time, Philip Margolis, a city sidewalk inspector, visited the demolition site. He found no structures bearing the address 6366 North Milwaukee in the area, then telephoned his office for a more detailed description of the building to be wrecked. Margolis was finally able to determine that the structure to be demolished as a wood-frame structure bearing signs identifying it as a landmark.

Mrs. Cirrincione received an executed contract for the demolition work prior to August 20, 1980. On that date, she went to the demolition site and took the photograph of the structure to be demolished which must accompany all demolition permit applications. This photograph of the house was submitted with the application. It was last seen in the possession of a city employee. It was not produced during pretrial discovery or at trial. On the same day, Mrs. Cirrincione went to Roppolo's office, showed him the application for the permit and gave him a letter of authorization which required his signature. She also asked him if she should use the 6366 address on the application. She said that she had observed that the addresses of the other buildings on the tract were 6374 through 6382, and that the house must be numbered out of sequence, as the other buildings all stood to the south of the house. She asked Roppolo if the proper house number shouldn't be higher than 6382. Roppolo stated that the address that should be used was 6366, and then signed the application *fn1 and authorization letter with that address. At the same time, Roppolo provided Mrs. Cirrincione a legal description of the property and the number of water cutoff and dust control permits obtained by Roppolo in his previous attempts to obtain a demolition permit for the house.

Mrs. Cirrincione then went to city hall. She obtained permits of approvals that were necessary to process the application from the Sewer Department, Streets and Sanitation, the Water Department, the Environmental Control Section, the Flammable Liquid Tank Section, the Zoning Department, and the Map Department. In the Map Department, the location of 6366 North Milwaukee Avenue was plotted on the official city map. The employees of the Map Department determined that 6366 was not the correct address of the house, then issued a house certificate bearing the address 6384 North Milwaukee Avenue. It was not unusual for the addresses on applications to be changed in this manner during processing. There was testimony that 6366 North Milwaukee was the house number affixed to the tool shed which had stood adjacent to the Rincker House until the city caused the shed to be demolished. Mrs. Cirrincione took the house number certificate, the corrected application with other documents to the Demolition Department and received an approval of the permit application.

Mrs. Cirrincione then returned to the permit control desk. She gave all the documents to Helen Cowell, a Department of Inspectional Services employee, who was assigned the duty of processing applications for building and demolition permits at the permit control counter. She calculated the permit fee, had it checked and organized the permit papers. She gave the papers to Annette Bueck, another employee assigned at the counter who passed the papers back to the remote terminal operator, whose terminal is located behind the permit control counter.

The remote terminal operator's job is to type the street address and other information contained on a permit application into the computer. If the address of a designated landmark is entered from the terminal, the computer will buzz and the work "landmark" will appear on the screen. No further information can be entered unless the operator manually overrides the system. If the address entered is not listed as a landmark, all the information from the application can be entered and the computer will print out the permit. On the application at issue, a line had been drawn through the number 6366 and the number 6384 was written above it. The operator entered the 6384 number, and the computer printed out Permit No. B586952, which permit gave Cirro permission to demolish the two-story frame structure at that address.

Five days later, employees of Cirro demolished the Rincker House. The application for a demolition permit was never reviewed by the Landmark Commission.

The Rincker House, built in 1851, was the second oldest building in Chicago, and the oldest example of the "balloon frame" construction method which originated in Chicago. It was also an example of the architectural style known as "carpenter gothic." Signs were attached to the house identifying it as a landmark, with one sign being approximately three feet by four feet. Several witnesses testified that the signs were always attached to the house during the summer of 1980, although other testimony indicated that vandals would occasionally remove the plywood window coverings to which the signs were attached in order to enter the house. Alfred Cirrincione, the bulldozer operator who wrecked the house, testified that he did not see the signs before wrecking the building, and that the plywood window coverings were lying on the ground around the house when he arrived on the site. Two neighbors testified that they had spoken to Alfred after the demolition and that he had made statements indicating that he had been told to expect landmark signs and that he was to ignore them.

Mrs. Cirrincione testified that she had never been told that the building was a landmark, and that she had seen no signs when she had visited the site to take the photograph for the application. She also testified she did not inform anyone at City Hall that the building was a landmark. Mrs. Cirrincione also testified that she called Commonwealth Edison (the electric company) to instruct it to remove its equipment from the site. The electric company maintains a record of customer calls known as the "terminal transaction record" which memorialized a call on August 21, 1980, at 3:57 p.m. from Mrs. Lee Cirro (Mrs. Cirrincione's business name) from the telephone number of Cirro, who stated, "Cirro Wrecking Co. will be demolishing two-story, green frame building on Monday, 8/25/80 at approximately 8:00 a.m. — requests removal of CECO [Commonwealth Edison Co.] equipment — customer warns there are four buildings on lot — remove equipment from building with Chicago Historical Landmark sign on it."

Testimony on behalf of the city indicated that to reconstruct the Rincker House and move it to a new location on the five-acre site would cost approximately $200,000 to $250,000; that the demolition of the Rincker House had an adverse effect on the neighborhood surrounding the house and resulted in a loss to Chicago's cultural and aesthetic heritage. On the other hand, Roppolo offered the testimony of a real estate appraiser that the demolition of the house had no effect on real estate values in the neighborhood or the city. Roppolo testified that the destruction of the Rincker House and the continuing debt service and attorney fees had cost him $325,000 between the date of demolition and the trial.

Plaintiffs appeal, contending that the proofs presented at trial established that defendants demolished the Rincker House without authority; that defendants are guilty of fraud, and that damages to plaintiffs were proved. Defendants filed a cross-appeal contending, amongst other things, that the trial court erred in not granting a change of venue, in denying their request for a jury trial and other relief.

I

The foremost issue in this appeal is whether a constructive trust arises by operation of law as the result of the actions, either jointly or severally, of defendants Roppolo, Cirro and Mrs. Cirrincione in demolishing the Rincker House, a Chicago landmark. In order to answer this question, we must first review some general principles of law and then examine the facts in the record.

Plaintiffs say that the defendants without authority wilfully demolished a landmark, thereby causing damages. The trial court held that the evidence did not clearly and convincingly prove any of the allegations of the complaint. *fn2

In County of Cook v. Barrett (1975), 36 Ill. App.3d 623, 627, 344 N.E.2d 540, appeal denied (1976), 63 Ill.2d 555, this court said, "[t]he particular circumstances in which equity will impress a constructive trust are `* * * as numberless as the modes by which property may be obtained through bad faith and unconscientious acts.' (4 Pomeroy's Equity Jurisprudence § 1045, at 97 (5th ed. 1941).) The barriers to its effective operation are few. The form of the property claimed determines nothing, since a constructive trust will extend to reach real and personal property, choses in action and funds of money. (4 Pomeroy's Equity Jurisprudence § 1044 (5th ed. 1941).) To make out a case a plaintiff must allege facts which disclose either actual or constructive fraud or an abuse of a confidential relationship."

• 1 The way in which a transaction assailed in constructive trust cases arises is immaterial. (Village of Wheeling v. Stavros (1980), 89 Ill. App.3d 450, 455, 411 N.E.2d 1067, appeal denied (1981), 82 Ill.2d 588.) In determining whether to impose a constructive trust, we should consider the principles of equity, good conscience and unjust enrichment, if any. (Cf. Zack Co. v. Sims (1982), 108 Ill. App.3d 16, 29, 438 N.E.2d 663.) As we noted in Chicago Park District v. Kenroy, Inc. (1982), 107 Ill. App.3d 222, 224, 437 N.E.2d 783, "[t]he recent trend in the Illinois law of constructive trusts has been a broadening of the circumstances in which this remedy is available."

Plaintiffs claim the court has the authority to compel defendants to pay a sum of money equal to that sum of money saved by Roppolo as the result of the demolition of the Rincker House, thereby eliminating his obligation to the city to move, reconstruct and restore said landmark. Thus, if the city can prove its theory, we think the right is one of those rights referred to in Barrett, Stavros, etc.

Plaintiffs claim defendants wilfully, intentionally and without authority demolished a landmark, and that in so doing the defendants are guilty of fraud. In order to determine the validity of plaintiffs' claim, we shall ...


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