Cirro Wrecking Co. v. Roppolo

Decision Date22 October 1992
Docket NumberNo. 72759,72759
Citation178 Ill.Dec. 750,605 N.E.2d 544,153 Ill.2d 6
Parties, 178 Ill.Dec. 750 CIRRO WRECKING COMPANY et al., Appellees, v. Anthony ROPPOLO et al., Appellants.
CourtIllinois Supreme Court

Andrew M. Raucci, Kusper & Raucci, Chartd., Chicago, for appellants.

Arthur R. Ehrlich and Gerald A. Goldman, Goldman and Marcus, Chicago, for appellees.

Justice FREEMAN delivered the opinion of the court:

This appeal stems from the razing of the Henry W. Rincker House (Rincker House), a Chicago historical landmark, by Cirro Wrecking Company (Cirro Wrecking) at the direction of Anthony Roppolo, the owner of the property on which the structure stood. In a suit filed by Cirro Wrecking and its owner, Lela Cirrincione, it was alleged that Roppolo and Rizzi Excavating Company (Rizzi Excavating), an agent of Roppolo, conspired to keep the landmark designation secret in order to accomplish the demolition. Pursuant to a motion in limine, the trial judge barred Cirrincione from denying that she was aware of the landmark designation as of the time of the demolition. The trial judge ultimately granted a directed verdict (Ill.Rev.Stat.1987, ch. 110, par. 2-1202) in favor of Roppolo and Rizzi Excavating after denying a motion by Cirro Wrecking and Cirrincione to amend their complaint so that it would conform to proof of a promise made by Roppolo to retain and preserve the Rincker House.

The appellate court reversed and remanded the matter for a new trial (No. 1-89-0027 (unpublished order under Supreme Court Rule 23)) but concluded that the trial judge did not abuse his discretion in disallowing amendment of the complaint.

We granted leave to appeal (134 Ill.2d R. 315(a)) and now affirm in part and reverse in part.

BACKGROUND

The circumstances which doomed the Rincker House are set out in some detail in City of Chicago v. Roppolo (1983), 113 Ill.App.3d 602, 69 Ill.Dec. 435, 447 N.E.2d 870, a case involving the same events and parties before this court. We direct attention to that factual account and repeat here, in general fashion, only that necessary to consideration of the issues presented.

Henry W. Rincker's two-story, frame farmhouse occupied a distinguished position in the history of Chicago architecture. One of the, then, eight structures in Illinois built in the architectural style known as "carpenter's Gothic," the house was the second oldest in the city. It was, perhaps, the first structure having a stone foundation to be built by the efficient method of "balloon frame" construction, utilizing standard lumber sizes, originally developed in the Chicago area.

In March 1978, with the intention of eventually constructing a shopping center and condominium housing units, Roppolo purchased acreage on which the Rincker House stood. Within weeks, Roppolo engaged Joseph Romano to demolish the house. The application for the demolition permit showed the address of the house as 6366 N. Milwaukee Avenue. That application was denied.

Proceedings to have the Rincker House declared a landmark by the Commission on Chicago Historical and Architectural Landmarks (Landmark Commission) were begun in June 1978. Roppolo was represented by an attorney in those proceedings. Nevertheless, in April 1979, Roppolo, through Romano, again sought a permit to demolish the house.

Again unsuccessful in securing a right to demolish the property, Roppolo applied, in February 1980, for a zoning amendment to allow him to develop the acreage as he had intended. Following hearings, the Chicago plan commission acceded to Roppolo's request, granting a modified amendment based on Roppolo's commitment to retain and preserve the Rincker House. Roppolo promised to move the house to another part of the property and to reconstruct and restore it at the direction of the Landmark Commission. That effort would have entailed considerable effort and expense for, although the Rincker House had been occupied when Roppolo purchased the acreage, a fire had ravaged the roof, upper floor, and interior of the house. In any event, Roppolo agreed that, when complete, the development would be known as "Landmark Square."

Roppolo, however, persisted in efforts to acquire a permit to demolish the Rincker House. He contacted Mario Rizzi of Rizzi Excavating to inquire of various demolition contractors whether any of them would be willing to apply for such a permit. Rizzi contacted Cirrincione. Cirrincione agreed to undertake the effort to acquire a permit on the condition that, if granted, Cirro Wrecking would be given the demolition contract.

On July 30, 1980, Cirrincione initiated efforts to secure a demolition permit, using the 6366 N. Milwaukee Avenue address for the Rincker House. Later, on August 20, 1980, while taking a photograph to accompany the application for the permit, she discovered that the address number appeared out of sequence. Recognizing that address numbers should increase to the north, Cirrincione observed that other structures on the acreage to the south of the structure had higher numbers. When she asked Roppolo what number to use on the application for the demolition permit, he directed her to use the 6366 N. Milwaukee Avenue address and provided her with a legal description.

Cirrincione continued to seek the various permits and approvals necessary to acquire the right to demolish the structure. At the city's map department, she was informed that the 6366 N. Milwaukee Avenue address was not, in fact, the correct address for the Rincker House. Accordingly, based on the legal description given to Cirrincione by Roppolo, a new house number certificate for the structure, bearing the address 6384 N. Milwaukee Avenue, was issued.

The fate of the Rincker House was sealed. With the application for the demolition permit, containing the corrected address, and other relevant documents in hand, Cirrincione obtained approval of the city's demolition department. She proceeded to the permit control desk where the address of the structure, as corrected, was checked against computer records to insure that no landmark would be affected by the permit. When no landmark status was indicated for the 6384 N. Milwaukee address, the permit to demolish the structure was automatically printed. The Rincker House was demolished five days later.

The Lawsuits

The city and a class comprised of all of its citizens subsequently filed an action against Roppolo, Cirro Wrecking, Cirrincione, and the bank holding title to the property in a land trust, seeking imposition of a constructive trust. The action, grounded on allegations of fraud, sought to prevent Roppolo's unjust enrichment resulting from the savings to him in restoration costs occasioned by the demolition. Following a bench trial, defendants were found not guilty of any fraudulent conduct which would support the imposition of a constructive trust.

The appellate court, with one justice dissenting, reversed the judgment as to Roppolo and the bank, concluding that Roppolo's conduct amounted to actionable fraud in view of his commitment to move, reconstruct, and restore the Rincker House. (City of Chicago v. Roppolo, 113 Ill.App.3d at 612-13, 69 Ill.Dec. 435, 447 N.E.2d 870.) That portion of the case was remanded for retrial.

The court also criticized Cirrincione for her role in the demolition. In rejecting Roppolo's argument that the city should be estopped in its action against him because it had issued the demolition permit, the court noted that it was satisfied that Cirrincione, as an agent of Roppolo, knew of the landmark designation at the time she processed the application. (City of Chicago v. Roppolo, 113 Ill.App.3d at 616-17, 69 Ill.Dec. 435, 447 N.E.2d 870.) The court also referred to evidence indicating Cirrincione had inspected the house and had noted, in a telephone conversation with an electric utility company employee the day after the permit was issued, the existence of posted signs indicating the landmark status. (City of Chicago v. Roppolo, 113 Ill.App.3d at 616, 69 Ill.Dec. 435, 447 N.E.2d 870.) However, because the court concluded Cirrincione was unaware of Roppolo's obligation to move, reconstruct, and restore the Rincker House, the court determined Cirrincione's knowledge was immaterial. The court therefore affirmed the trial judge's ruling that neither Cirrincione nor Cirro Wrecking were guilty of either fraud or constructive fraud. City of Chicago v. Roppolo, 113 Ill.App.3d at 617, 69 Ill.Dec. 435, 447 N.E.2d 870.

Subsequent to the termination of the city's action in the circuit court, Cirro Wrecking and Cirrincione (plaintiffs) filed the present action against Roppolo, the bank, and Rizzi Excavating (defendants). In their amended complaint, plaintiffs alleged that defendants never informed them of the landmark status of the Rincker House. Plaintiffs alleged that the existence of the landmark designation was a material fact underlying their agreement with defendants to process the application for the demolition permit and to undertake the demolition contract. In addition, the application for a demolition permit signed by Roppolo contained a certification that all work under the permit would conform to the Chicago Municipal Code. Defendants' failure to inform plaintiffs of the landmark status in light of those facts, plaintiffs asserted, constituted the breach of a duty owed to them. Plaintiffs sought damages including amounts for loss of business due to adverse publicity and attorney fees incurred in defending various suits arising from the demolition.

Prior to trial, defendants moved to bar plaintiffs from eliciting any testimony from Cirrincione to establish that she was unaware of the landmark status of the Rincker House when it was demolished. Citing the appellate court's conclusion in City of Chicago v. Roppolo that Cirrincione had such knowledge, defendants argued the doctrine of collateral estoppel precluded plaintiffs from relitigating the issue.

In turn, plaintiffs filed a motion...

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