Krejci v. Capriotti

• Citation: 305 N.E.2d 667,16 Ill.App.3d 245
• Decision Date: 21 November 1973
• Docket Number: No. 57783,57783
• Parties: Frank KREJCI et al., Plaintiffs-Appellees, v. John CAPRIOTTI, etc., Defendant-Appellant. Donald W. WEST et al., Counter Plaintiffs-Appellees, v. John CAPRIOTTI, etc., Counter Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 667

305 N.E.2d 667

16 Ill.App.3d 245

Frank KREJCI et al., Plaintiffs-Appellees, v. John CAPRIOTTI, etc., Defendant-Appellant.

Donald W. WEST et al., Counter Plaintiffs-Appellees, v. John CAPRIOTTI, etc., Counter Defendant-Appellant.

No. 57783.

Appellate Court of Illinois, First District, Fifth Division.

Nov. 21, 1973.

Harvey P. Powers and Mayme F. Spencer, Chicago, for defendant-appellant

Carr & O'Rourke Associates, Chicago, for plaintiffs-appellees.

LORENZ, Justice.

Defendant, John Capriotti, appeals from judgments awarding compensatory damages to plaintiffs Frank and Irene Krejci for trespass and to counter-plaintiff Kaufman and Broad Homes, Inc. in an action for indemnification. The complaint was filed against Capriotti for the construction of an advertising billboard on plaintiffs' vacant land and against co-defendants Motel Investment Company and Kaufman and Broad Homes, Inc. for their subsequent rental of that billboard. Both codefendants filed counterclaims against Capriotti for indemnification and Motel Investment Company further claimed unjust enrichment.

Judgments were entered as follows:

(1) against Kaufman and Broad Homes, Inc. for $1,167 in favor of the Krejcis,

(2) against Capriotti for $7,200 actual damages and $5,000 punitive damages in favor of the Krejcis,

(3) against Capriotti for $1,000 punitive damages and $1,167 as indemnification in favor of Kaufman and Broad Homes, Inc. on its counterclaim,

(4) against Capriotti for $3,375 as unjust enrichment in favor of Motel Investment Co. on its counterclaim.* The Krejcis were denied recovery on their claim against Motel Investment Company. ^*

The sole contention raised by Capriotti on appeal is that the failure to make a reentry onto the land prior to the institution of the proceedings barred a recovery for mesne profits. A brief discussion of the facts is merited.

In February, 1969, Capriotti, without permission, entered upon plaintiffs' vacant land and erected a billboard. One month later Capriotti entered into an agreement with Motel Investment Company to paint and maintain advertisements on the billboard. Prior to the expiration of this contract and without the knowledge of Motel Investment Company, Capriotti negotiated a second contract with Kaufman and Broad Homes, Inc. regarding the same sign. Rentals were collected from both parties until Krejcis' discovery of Capriotti's conduct in July, 1970. The Krejcis, having discovered the trespass in may, 1969, attempted to arrange a sale of the property to Capriotti. Negotiations extending over several months broke down when the Krejcis discovered that they were being conducted in bad faith. Thereupon, the Krejcis demanded the removal of the sign in March, 1970 and several times thereafter until the filing of the complaint on July 10, 1970. In answer to an amended complaint, Capriotti asserted that the sign had been removed in November, 1970. The Krejcis acknowledged the removal upon a subsequent examination of the premises. Judgment was entered April 7, 1972, following a hearing on the merits.

OPINION

Capriotti contends that the complaint was fatally defective in that one of the allegations admits by implication that there had been neither an ouster of defendant nor a re-entry by plaintiffs. It is true that the gist of an action in trespass is the injury to the possession which requires that plaintiffs have actual possession at the time the wrongful act is committed. (Smith v. Wunderlich, 70 Ill. 426.) The only exception to this requirement of actual possession is where plaintiffs are the owners and the property is unoccupied. (Dean v. Comstock, 32 Ill. 173.) It follows that no action for mesne profits lies where there has been neither an ouster of defendant nor a re-entry by plaintiffs. (Harding v. Larkin, 41 Ill. 413.) However, nominal damages may always be sought for the legal injury. (87 C.J.S. Trespass § 117; Falejczyk v. Meo, 31 Ill.App.2d 372, 176 N.E.2d 10.) Consequently, the complaint here was not defective since it alleged that the Krejcis are owners of the vacant real estate in question and therefore would at least be...