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Curtis v. Wilks

March 29, 2010

TOD CURTIS, INDIVIDUALLY AND AS BENEFICIARY, FIRST UNITED TRUST COMPANY, AS TRUSTEE UNDER TRUST NO. 10510, AND ELTO RESTAURANT INC., AN ILLINOIS CORPORATION, PLAINTIFF,
v.
IRVANA WILKS, VILLAGE OF MOUNT PROSPECT & LOCAL LIQUOR CONTROL COMMISSIONER, MICHAEL E. JANONIS, VILLAGE OF MOUNT PROSPECT MANAGER, WILLIAM COONEY, VILLAGE OF MOUNT PROSPECT ECONOMIC DIRECTOR, WILLIAM SCHROEDER, VILLAGE OF MOUNT PROSPECT BUILDING COMMISSIONER, ROBERT ROELS, VILLAGE OF MOUNT PROSPECT ENVIRONMENTAL HEALTH MANAGER, FRANK KRUPA, VILLAGE OF MOUNT PROSPECT ENVIRONMENTAL HEALTH INSPECTOR, OZ DEVELOPMENT, LLC, ERROL OZTEKIN, AND THE VILLAGE OF MOUNT PROSPECT, DEFENDANTS.



The opinion of the court was delivered by: Judge Ronald A. Guzmán Mayor

MEMORANDUM OPINION AND ORDER

Plaintiffs, Tod Curtis, First United Trust Company, and Elto Restaurant, Inc., have sued defendants pursuant to 42 U.S.C. §§ ("section") 1983, 1985(3) for violating, and conspiring to violate, constitutional rights as guaranteed by the First, Fifth and Fourteenth Amendments to the U.S. Constitution and pursuant to 18 U.S.C. § ("section") 1962(c) and (d) for their engaging in a pattern of racketeering activity in order to deprive him of his property in Mount Prospect, Illinois. Defendants move for summary judgment under Federal Rule of Civil Procedure ("Rule") 56. For the reasons provided, the Court grants in part and denies in part the motion.

Motion to Strike Rotolo's Declaration and Report and Chick's Declarations and Report Defendants move to strike William Rotolo's Declaration and Report and Kevin Chick's Report because they do not qualify as experts regarding the opinions they give. "Daubert's general principles apply to the expert matters described in Rule 702." Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149 (1999). Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. "The trial court acts as a gatekeeper to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable." Owens v. Amtrol, Inc., 94 F. Supp. 2d 952, 955 (N.D. Ind. 2000) (quotation omitted).

Rotolo's curriculum vitae states that he was a city planner for Schaumburg and Wilmette, Illinois approximately twenty-four to thirty-three years ago. Because Rotolo gained most, if not all, of his knowledge of the practices and usage of other suburban municipalities' planning practices two or three decades ago, he is not qualified to testify about the current-day practices of the Village of Mount Prospect or other municipalities in the Northwest Municipal Conference. (See Pl.'s LR 56.1(b)(3)(B) Stmt. ¶¶ 43-44, 46-51, 55-56, 69, 72, 77; Pl.'s LR 56.1(b)(3)(C) Stmt. ¶¶ 27, 41, 52, 57, 63-69.) Merely because Rotolo owned and occupied an office in another village near Mount Prospect also does not qualify Rotolo as an expert on the practices of other suburban municipalities. Plaintiffs have simply failed to connect the dots, i.e., establish that Rotolo's private sector experience qualifies him as an expert on suburban, and in particular the Village of Mount Prospect's, downtown redevelopment practices and professional standards of property appraisal. Moreover, neither he nor anyone else is qualified to speculate as to another's intent. (See Pl.'s LR 56.1(b)(3)(B) Stmt. ¶¶ 43-44, 46-51, 55-56, 69, 72, 77; Pl.'s LR 56.1(b)(3)(C) Stmt. ¶¶ 27, 41, 52, 57, 63-69; see, e.g., id. ¶ 63 ("the Village engaged in selective and vindictive enforcement of Village codes and regulations to harass Tod Curtis and to force him to sell his property"); id. ¶ 65 ("the Village Defendants and Oztekin were complicit and had some covert unwritten agreement to drive Curtis out of the Village of Mount Prospect").) In short, Rotolo's experience does not qualify him as an expert regarding the matters to which he attests.*fn1 The Court grants defendants' motion to strike Rotolo's declaration and report from plaintiffs' LR 56.1 submissions.

Next, defendants move to strike Kevin Chick's declarations and report. For purposes of the summary judgment motion, plaintiffs rely on Chick's Declaration for a single fact statement: "[T]he excavation and construction of the Blues Bar, that began in October 2006, caused significant damages to YOTI's roof, walls, and steam pipes, which will require Plaintiffs to spend approximately $965,000.00 to repair the building's east wall." (See Pl.'s LR 56.1(b)(3)(C) ¶ 28.) Thus, plaintiffs rely on Chick's declarations and report to establish: (1) the cause of the damage to plaintiffs' property; and (2) that $965,000.00 in repairs are necessary to fix the damage.

First, with regard to Chick's opinion that the excavation and construction of the Blues Bar caused damage to plaintiffs' property, the Court agrees with defendants. It is undisputed that Chick has been in the remodeling contracting business for thirty years and his current company, Artistic Creation Designs LLC, builds homes, renovates buildings and designs cabinetry. However, because Chick does not state that he has an engineering degree*fn2 or particular experience in analyzing the cause of structural damage, he is not qualified to testify as an expert regarding the cause of any existing or impending structural damage to plaintiffs' property's roof, walls or steam pipes. Further, he does not provide the methodology he used to reach his opinion, and thus the Court finds that his ipse dixit conclusions are not sufficiently reliable. For example, although he inspected the interior and exterior east wall of plaintiffs' property after the construction of the Blues Bar, he does not state that he relied on the review of other scientific data gathered by others (such as a person with specific experience in such matters, which might include, but would not necessarily be, someone with an engineering background) in reaching his conclusion that the structural damage to plaintiffs' property was caused by the excavation and construction of the Blues Bar. (Cf. Pl.'s Ex. 3, Chick Decl. Ex. B (stating estimated cost does not include cost of architect and engineer).)

Second, with regard to Chick's opinion that plaintiffs are required to spend $965,000.00 to repair the damage, the Court, again, agrees with defendants. Without a relevant engineering degree or any explanation of the particular knowledge he has gained from a sufficiently analogous experience, he is not qualified as an expert to give an opinion as to the extent and manner of repairs necessary to restore the structural integrity of plaintiffs' property.*fn3 Further, his cost estimate does not provide any way for the Court to determine the portions, if any, about which he is qualified to testify. (See id., see also Pl.'s Ex. 3, Chick Decl. ¶ 19.) As an example, Chick might have provided lay testimony that upon inspection of plaintiffs' property, he saw that certain bricks and parapet caps on the exterior of the east wall were missing or damaged, and Chick might have been qualified to testify as to the cost to replace or repair those bricks and parapet caps if plaintiffs had established a foundation that he has sufficient experience in estimating the costs of such materials. However, his cost estimate in his declarations and report does not separate the cost of replacing or repairing missing or damaged bricks or parapet caps from the cost of demolishing and rebuilding the entire wall. The presumption underlying the estimate is that all of the categorized repairs are necessary to restore the structural integrity of plaintiffs' property. However, as stated above, Chick is not qualified as an expert to testify that all of his suggested repairs are necessary to make the building structurally sound. He has not explained how he concluded that all of the repairs were necessary or provided an analysis as to precisely how he estimated the cost of those repairs.

Chick has not sufficiently explained how his experience qualifies him as an expert in determining the cause of structural damage and in estimating the extent and manner of repairs necessary to make a building structurally sound. Although Chick has inspected the premises, he has not shown that his conclusion is based on sufficient facts or data using reliable principles and methods. Therefore, the Court grants defendants' motion to strike Chick's declarations and reports from plaintiffs' LR 56.1 submissions.

Facts*fn4

Curtis is the sole owner of the property located at 6-18 W. Busse Avenue in Mount Prospect, Illinois ("plaintiffs' property"), as the sole beneficiary with the power of direction of Trust No. 10510, for which First United Trust Co. acts as trustee, which holds title to plaintiffs' property. (Defs.' LR 56.1(a)(3) Stmt. ¶ 1.) Elto Restaurant, Inc., an Illinois corporation solely owned by Curtis, has for forty years owned and operated Ye Olde Town Inn ("YOTI"), a restaurant and bar located in the building on plaintiffs' property. (Id. ¶ 2.) At least one business has rented retail space on plaintiffs' property. (Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 38.)

Irvana K. Wilks is the Mayor and Liquor Control Commissioner of Mount Prospect, which is an Illinois municipal corporation. (Defs.' LR 56.1(a)(3) Stmt. ¶¶ 3, 9.) Michael E. Janonis is the Village Manager of Mount Prospect. (Id. ¶ 4.) William Schroeder is the Building Commissioner of Mount Prospect. (Id. ¶ 5.) Robert Roels is the Environmental Health Manager of Mount Prospect. (Id. ¶ 6.) Frank Krupa is a Health Inspector for Mount Prospect. (Id. ¶ 7.) William Cooney is the Economic Director of Mount Prospect. (Id. ¶ 8.)

Oz Development, LLC is an Illinois limited liability company, which owns the property located at 2 W. Busse Avenue in Mount Prospect, and is solely owned by Errol Oztekin. (Id. ¶ 10.) Oztekin is also the sole owner of Blues Bar, LLC, which owns and operates a restaurant and bar called "Blues Bar" located in the building on Oz Development LLC's property adjacent to plaintiffs' property. (Id. ¶ 11.)

In the 1990s, a developer redeveloped property directly behind the YOTI to the north of plaintiffs' property with a building featuring 340 condominium units. (Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 3.) As part of the redevelopment, the Village initiated partial condemnation proceedings of the north portion of plaintiffs' property so that the Village could build a private road to access the new condominium building. (Id.)

In 2004, Mount Prospect's Board of Trustees formed a Downtown Redevelopment Ad Hoc Committee ("the committee") for the purpose of reviewing current redevelopment opportunities within the downtown area. (Defs.' LR 56.1(a)(3) Stmt. ¶ 20.) The committee divided the downtown area into six sub-areas in order to focus on varying issues that may impact the redevelopment of different parcels. (Id. ¶ 21.) Sub Area #1 was "the Triangle," an area bordered by Main Street (Route 83), Northwest Highway and the north and south sides of Busse Avenue. (Id. ¶ 22.) The committee found that the majority of the existing buildings in the Triangle did not meet the Village's current building code standards and regulations and recommended a complete unified redevelopment of the parcels located within the Triangle. (Id. ¶ 23; Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 53.) Plaintiffs' property and the Oz property are located in the Triangle. (Defs.' LR 56.1(a)(3) Stmt. ¶ 24.)

In April 2004, Robert Roels, Mount Prospect Environmental Health Manager, inspected YOTI and found property maintenance violations on the exterior of the property that included loose shingles, a hole in the roof of the overhang in front of the YOTI, a missing ballister on the rear stairway, garbage, debris/rubbish/storage behind the YOTI, flaking paint and rotting wood on the exterior of the front of the building and the soffit and fascia. (Id. ¶ 42.) On April 21, 2004, Roels sent a letter to Curtis notifying him of the violations. (Pls.' LR 56.1(b)(3)(B) Stmt. ¶ 42.)

In the fall of 2005, Oztekin presented the Village with a redevelopment concept for the Triangle that included the Blues Bar, which would be a restaurant and entertainment venue, and other restaurants ("Entertainment District Proposal"). (Defs.' LR 56.1(a)(3) Stmt. ¶ 30.) The layout he gave the Village included the whole Triangle except for plaintiffs' property. (Id.) On August 15, 2005, the Village notified Curtis via letter that it was not interested in buying his property. (Id. ¶ 69.)

In late 2005 through 2006, in conjunction with the Entertainment District Proposal, Oztekin, through Oz Development, purchased several parcels located in the Triangle, including the property at 2 W. Busse Avenue ("the Oz property"). (Id. ¶ 32.) It is disputed whether the Village Board approved the initial Entertainment District Proposal. (Id.) It is also disputed whether the Village board and Oztekin agreed that Oztekin would purchase the properties in the Triangle and the Village board would pay a premium of twenty-five percent above the appraised value to either the property owner or Oztekin. (See Pls.' Ex. 6, Cooney Dep. at 231; Pls.' Ex. 13, Oztekin Dep. at 98. Compare Defs.' LR 56.1(a)(3) Stmt. ¶ 33, with Pls.' LR 56.1(b)(3)(B) Stmt. ¶ 33.) However, it is undisputed that the Village was set to pay Oztekin $1,250,000.00 to purchase properties in the Triangle. (Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 20.)

On March 22, 2006, the Village's Department of Finance, with the input of Economic Director William Cooney, created a spreadsheet entitled "Village of Mount Prospect, Illinois Downtown Redevelopment TIF Cash Flow Projections" which estimated that the Village's potential acquisition cost of plaintiffs' property was $1,500,000.00. (Id. ¶ 25.)

In late 2006 or early 2007, Oztekin determined that the Entertainment District Proposal was infeasible because it would result in a loss in investment. (Id.) Oz met with developers, including John Heimbaugh, to discuss a viable redevelopment plan for the Triangle. (Id.) Although it is disputed whether Heimbaugh and Oztekin discussed their plans with the Village beginning in late 2006, it is undisputed that on May 20, 2008, the Village Board approved Heimbaugh and Oztekin's "Homebrook redevelopment plan," a mixed-use, multi-story residential/commercial project, which included the YOTI property. (Defs.' LR 56.1(a)(3) Stmt. ¶ 38.)

On July 25, 2006, Mayor Wilks, Village Manager Janonis and four Village trustees met with Curtis and told him that the Village had no interest in ever purchasing plaintiffs' property. (Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 21.) At this meeting, the defendants stated that they supported the Entertainment District Proposal, which did not include plaintiffs' property. (Id.)

On October 16, 2006, plaintiffs' counsel asked the Village for twenty-five percent of the Tax Increment Financing ("TIF") funds earmarked for a downtown redevelopment project and plan. (Id. ¶ 45; Defs.' LR 56.1(a)(3) ¶ 17.) On October 18, 2006, Mayor Wilks responded that plaintiffs were not entitled to any TIF funds because they had not submitted plans for redeveloping the YOTI or taken any effort to maintain the building or address its poor appearance. (Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 45.) On October 25, 2006, Curtis publicly announced his plan to redevelop plaintiffs' property without the use of TIF funds with a development including a restaurant, sports bar, four retail stores and three stories of condominiums above the retail level ("the Gateway Centre"). (Id. ¶ 46.)

In October 2006, Oz and Oztekin demolished the existing building on the Oz Property and constructed a new two-story building housing the Blues Bar, which opened on October 10, 2007. (Defs.' LR 56.1(a)(3) Stmt. ¶ 34.) It is disputed whether the demolition, excavation and construction of the Blues Bar caused damage to plaintiffs' property and the extent to which plaintiffs have repaired any of the damage, but it is undisputed that a steam pipe on plaintiffs' property was cut. (Pls.' LR 56.1(b)(3)(C) Stmt. ¶¶ 28, 30, 35, 37, 40.) Before doing so, Oztekin's counsel sent plaintiffs' counsel a letter that stated that Oz would not be liable for any damages to plaintiffs' building caused by work on the Oz property and cited Illinois law in support. (Id. ¶ 29.)

On December 22, 2006, Oz sent Curtis a letter offering to purchase plaintiffs' property for $1,400,000.00. (Id. ¶ 26.) Curtis rejected the offer that same day. (Id.)

In January 2007, John Mundie, an Illinois certified real estate appraiser, appraised the fair market value of plaintiffs' property as $1,265,000.00 or $90.00 per square foot. (Defs.' LR 56.1(a)(3) Stmt. ¶ 72.) On January 25, 2007, the Village offered Curtis $1,265,000.00 for the property. (Pls.' LR 56.1(b)(3)(C) Stmt. ¶ 26.)

On February 19, 2007, Curtis' attorney sent a letter to Oz offering to purchase two of Oz's properties, 15 W. Busse Avenue and 19 W. Busse Avenue, for $80.00 per square foot, which was later increased to $90.00 per square foot. (Defs.' LR 56.1(a)(3) Stmt. ¶ 73.)

On March 8, 2007, Everette "Buzz" Hill, Village Attorney for Mount Prospect, sent a letter to plaintiffs' counsel stating that Mayor Wilks and the Village Board "will not enter into any agreement with Mr. Curtis for the redevelopment of TIF Sub Area #1. Neither does the Village intend to sell any of its properties in Sub Area #1 to your ...


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