author: PRESIDING JUSTICE DOWNING JUSTICE STAMOS,

text:
    THE CITY OF CHICAGO et al., Plaintiffs-Appellants, v. ANTHONY ROPPOLO et al., Defendants-Appellees.
    First District (2nd Division)
    Nos. 81—1167, 81—1168, 81—1685 cons.
    Opinion filed March 22, 1983.
    — Rehearing denied April 28, 1983.

      STAMOS, J., dissenting.
    Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke and Richard F. Friedman, Assistant Corporation Counsel, of counsel), for appellants.
    Andrew M. Raucci, of Kusper & Raucci Chartered, of Chicago, for appellee Anthony Roppolo.
    Brydges, Riseborough, Morris, Franke and Miller, of Chicago (George E. Riseborough, of counsel), for appellees Cirro Wrecking Company, Inc., and Lela Cirrincione.
   PRESIDING JUSTICE DOWNING

delivered the opinion of the court:

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 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.

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.”

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 analyze and evaluate the separate conduct of each defendant.

A

We first consider defendant Roppolo. He was associated with Roppolo-Prendergast Builders, developers and builders, with offices at 6315 North Milwaukee Avenue, Chicago. In March 1978, Roppolo and Prendergast purchased the approximately five acres of real property on which the Rincker House was then located. Title to the property was placed in a land trust with the Northwest National Bank of Chicago, Roppolo and Prendergast each owning 50% beneficial interest. Prendergast is not a party in this litigation, and there is nothing in the record to suggest he was more than nominally involved.

About April 3, 1978, shortly after the purchase of the property, Roppolo caused one Joseph Romono to file with the city an application for a permit to wreck a building at 6366 North Milwaukee Avenue. The building to be demolished was the Rincker House. On May 1, 1978, the city advised that the demolition permit would not be issued. Thereupon, Roppolo and Prendergast commenced a mandamus action in the circuit court of Cook County which was dismissed on June 16, 1978. An appeal to this court was dismissed for want of prosecution.

On June 5, 1978, proceedings were commenced to designate the Rincker House and the tract of property on which it was located as an official Chicago historical and architectural landmark. Roppolo was represented by an attorney who appeared at the landmark proceedings. After a recommendation by the Landmark Commission on April 10, 1979, the Chicago city council on August 10, 1979, by ordinance, designated the Rincker House as a Chicago historical landmark. Roppolo opposed the designation throughout. He also testified that he knew that upon designation of a building as a landmark, thereafter permission to demolish the building had to be obtained from the Landmark Commission. In 1979, signs appeared on the house identifying it as an “Official Chicago Landmark.”

During the pendency of the landmark proceedings, Joseph Romono, on behalf of Roppolo, in April 1979 filed with the city a second application for a demolition permit which was issued by the city on May 7,1979, and revoked on the same date.

On February 29, 1980, Roppolo filed with the city an application for an amendment to its zoning ordinance. Specifically the amendment requested approval of a planned development to be called “Landmark Square” and provided for relocating the Rincker House in the comer of the property. It was referred to the Chicago Plan Commission for a public hearing.

On July 10, 1980, during the course of the plan commission public hearings on the proposed amendments for “Landmark Square,” Roppolo agreed, through his attorney, to the following language to be included in the application:

“9. Roppolo-Prendergast Builders, Inc. will retain the Rincker House, a designated Chicago Landmark, and will move the House to the landscaped site designated in the attached site plan. Roppolo-Prendergast Builders, Inc. will reconstruct the House. The movement, reconstruction and use of the House will be subject to the approval of the Commission on Chicago Historical Landmarks and may be modified with the approval of said body;

Notwithstanding all of the preceding action, around July 10, 1980, Roppolo authorized one Mario Rizzi to find a demolition contractor to apply to the city for a demolition permit to demolish the Rincker House. There is evidence in the record that Roppolo made the application to protect his legal rights. Around July 30, 1980, Rizzi secured Mrs. Cirrincione to agree to apply for a permit only if there was a contract to demolish the structure. Roppolo agreed to that and authorized a contract with Cirro to demolish the Rincker House. In fact, Roppolo signed a “Letter of Authorization” to Cirro to wreck the building. Thereupon, Mrs. Cirrincione applied to the city for a demolition permit, which application contained the signature of Roppolo as the owner.

During the application procedure, questions were raised as to the exact address of the house. The application, dated July 30, 1980, indicated 6366 North Milwaukee Avenue. Roppolo advised Mrs. Cirrincione to use that number and provided a legal description. During the application processing, the Map Department of the city identified the property as 6384 North Milwaukee Avenue. As the landmark was designated 6366 North Milwaukee Avenue, a demolition permit was issued on August 20, 1980, notwithstanding the application to demolish the Rincker House was never submitted to or reviewed by the Landmark Commission prior to the demolition of the house. The application having been issued on Wednesday, August 20, 1980, the Rincker House was demolished about 9 a.m. on Monday, August 25,1980.

The record clearly established (1) that Roppolo had knowledge the Rincker House was designated a landmark; (2) that Roppolo knew approval by the Landmark Commission was necessary to demolish a landmark; (3) that Roppolo neither applied to the Landmark Commission for approval to demolish or directed Mrs. Cirrincione, on his behalf, to apply; (4) that in consideration for the approval of pending rezoning of the Landmark Square, Roppolo agreed to move and reconstruct the house which, along with the use, would be subject to the approval of the Landmark Commission; (5) that Roppolo in authorizing the demolition promised to comply with the Municipal Code of the city; (6) that there would be a cost to move and reconstruct the Rincker House which would be approximately $200,000 to $250,000; and (7) that application to demolish had been twice refused. Knowing all of the aforesaid, Roppolo nevertheless concealed from the Landmark Commission his intent to demolish a landmark. Then he caused the action which resulted in the demolition of the Rincker House in violation of his promises, and also in violation of the requirement that the permission of the Landmark Commission was required before demolition would proceed. By so doing, he caused the injury to the city by the unlawful destruction of the landmark.

We consider Roppolo’s conduct to have been irresponsible, in utter disregard of the law and his commitments to the city. During the period Mrs. Cirrincione was attempting to secure the permit, she and Roppolo admittedly discussed the address question. Placing that in its best light, it is obvious Roppolo was aware that he had everything to gain and nothing to lose by having Mrs. Cirrincione, as his agent, seek a demolition permit. Immediately following the issuance of the permit, Mrs. Cirrincione called the gas, electric and telephone companies, and went to the Illinois Department of Transportation offices for permits to transfer her equipment from its garage to the property. Yet, Mrs. Cirrincione testified that after obtaining the permit, she never advised Roppolo.

We think the facts clearly indicate Roppolo acted in bad faith in that he used Mrs. Cirrincione to obtain the permit to demolish, knowing that he had a continuing duty to move and reconstruct the landmark. Roppolo knowingly and wilfully triggered the demolition, by agreeing to pay $4,000 to demolish that which he knew he was obligated not to demolish, thereby saving a large amount of money estimated to be approximately $200,000 to $250,000. Roppolo, by using Mrs. Cirrincione, was ready to, and willingly, accepted the benefits of the erroneously issued permit. This is the type of action in which equity, good conscience and the prospective unjust enrichment (by not having to fulfill his obligation) demands the imposition of a constructive trust.

We think the facts as to Roppolo can be characterized as either fraud or constructive fraud. In re Estate of Neprozatis (1978), 62 Ill. App. 3d 563, 568, 378 N.E.2d 1345, this court discussed “fraud” and “constructive fraud.” (See Gary-Wheaton Bank v. Burt (1982), 104 Ill. App. 3d 767, 773-74, 433 N.E.2d 315.) Fraud is a generic term, embracing all multifarious means which human ingenuity can devise, and which are resorted to by one individual to get advantage over another by false suggestions or by suppression of truth, and includes all surprise, trick, cunning, dissembling, and any unfair way by which another is cheated. It comprises all acts, omissions, and concealments involving a breach of a legal or equitable duty and resulting in damage to another. Black’s Law Dictionary 594-95 (5th ed. 1979).

In People ex rel. Chicago Bar Association v. Gilmore (1931), 345 Ill. 28, 46, 177 N.E. 710, our supreme court said, “fraud includes anything calculated to deceive, whether it be a single act or combination of circumstances, whether the suppression of truth or the suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or by silence.” We think Roppolo’s conduct meets the definition of “fraud.”

Constructive fraud consists in any act of commission or omission contrary to legal or equitable duty which operated to injure another, which if generally permitted would be prejudicial to the public welfare. (Black’s Law Dictionary 595 (5th ed. 1979).) We think Roppolo’s conduct can also be classified as a “constructive fraud.”

Roppolo falsely led Mrs. Cirrincione to believe that he was entitled to a demolition permit, falsely induced the city, through Mrs. Cirrincione acting as his agent, to issue a permit to demolish a landmark without the approval of the Landmark Commission, and falsely omitted, through his agent, to advise and inform the city employees of the agreement he had with the city to move and reconstruct the building for which he sought the demolition permit. We think that his acts, and those of his agent, were intended to deceive the city employees for Roppolo’s gain and to the detriment of the plaintiffs.

Roppolo failed to act when he had a duty to secure the permission of the Landmark Commission prior to any demolition. By using Mrs. Cirrincione, he was able to conceal the true facts and was the willing beneficiary for his financial gain, of the administrative error which occurred in issuing the permit. The conduct of Roppolo and Mrs. Cirrincione had a detrimental effect upon public interest and public confidence in city government.

Mrs. Cirrincione was acting as agent for Roppolo for the specific purpose of securing the permit and demolishing the building. By failing to disclose to the city employees that the address involved was a landmark, Mrs. Cirrincione, as Roppolo’s agent, concealed a material fact. It is well established that the principal may be liable to third persons for wrongful or tortuous acts committed by his agent at his direction or while acting within the scope of his authority. Mrs. Cirrincione’s failure to disclose a material fact with intent to mislead in order to obtain the permit amounted to fraudulent concealment. Roppolo cannot hide behind the acts of Mrs. Cirrincione or Cirro. The acts of the agent are imputable to the principal. 1 Ill. L. & Prac. Agency secs. 181 — 182 (1953); see United States v. Fox Lake State Bank (N.D. Ill. 1965), 240 F. Supp. 720, 722, aff’d in part, rev’d in part on other grounds (7th Cir. 1966), 366 F.2d 962.

As the result of the actions which Roppolo triggered, the Rincker House was demolished. The city was damaged as the result of the destruction of the landmark. The city established the Commission on Chicago Historical and Architectural Landmark for the purpose of, amongst other things, designating buildings having a special historical, community, or aesthetic interest or value as “Chicago Landmarks” to preserve, protect, enhance, rehabilitate and perpetuate the designated landmarks. (1981 Municipal Code of Chicago, ch. 21, sec. 21 — 64 et seq. (1981).) Thus, the city in order to enhance the cultural and historical environment elected to officially designate the Rincker House as a Chicago Landmark. The destruction of the building frustrated the city’s action and diminished the cultural and historical quality of the city. It is to be remembered the Roppolo demonstrated his awareness of the benefit of a landmark designation by identifying his proposed redevelopment as “Landmark Square.”

B

Defendant Roppolo argues that the judgment of the circuit court is not against the manifest weight of the evidence. The trial court held that as to all defendants, the evidence failed to prove fraud, a breach of fiduciary duty, a constructive trust or damages of any kind.

It is elementary that a reviewing court will not disturb a trial court’s finding and substitute its own judgment unless the holding of the trial court is manifestly against the weight of the evidence. On the other hand, it is our duty as a reviewing court to reverse any judgment wherein the findings are clearly and palpably against the manifest weight of the evidence. (Drovers National Bank v. Great Southwest Fire Insurance Co. (1977), 55 Ill. App. 3d 953, 956, 371 N.E.2d 855, appeal denied (1978), 71 Ill. 2d 602.) As to the defendant Roppolo, for the reasons set out in this opinion, we find the trial court’s findings clearly and palpably against the manifest weight of the evidence.

C

Defendant Roppolo further urges that he was under no duty to insure that the city’s employees properly performed their jobs and followed its own procedures. And, as it issued the permit, the city was estopped from bringing the instant action. (Cities Service Oil Co. v. City of Des Plaines (1961), 21 Ill. 2d 157, 171 N.E.2d 605.) Roppolo argues, rather imaginatively that, as he was required by ordinance to apply for a permit, it would be inequitable to impose a constructive trust when the city issued the permit.

Roppolo’s estoppel argument is without merit. The Chicago Landmark Ordinance (section 21 — 64.1(a)) required the approval of the Landmark Commission in order to obtain a permit. This was not obtained. The fact is the permit was issued by virtue of an incorrect street address being placed on the application in the city Map Department.

In O’Laughlin v. City of Chicago (1975), 28 Ill. App. 3d 766, 772, 329 N.E.2d 528, aff’d (1976), 65 Ill. 2d 183, 357 N.E.2d 472, we discussed the issue of estoppel at great length and examined the supreme court’s opinion in the Cities Service Oil Co. case. The supreme court also discussed this issue and the Cities Service Oil Co. case in affirming O’Laughlin. (See 65 Ill. 2d 183, 192.) The subject of estoppel has also been discussed in other cases. (E.g., Sharrett v. Campbell (1982), 109 Ill App. 3d 1, 6-10, 440 N.E.2d 167; Hagee v. City of Evanston (1980), 91 Ill. App. 3d 729, 733-34, 414 N.E.2d 1184, appeal denied (1981), 83 Ill. 2d 570; and Ganley v. City of Chicago (1980), 81 Ill. App. 3d 877, 881-82, 401 N.E.2d 1184.) Estoppel generally arises against a municipality in two situations: (1) where there is a substantial change of position under a permit validly issued which is later revoked due to a subsequent change in the law; or (2) where there has been a substantial change of position under an invalid permit and the party to whom the permit was issued was actively induced or misled by city officers.

As discussed below, we are satisfied beyond any doubt that Mrs. Cirrincione, at the time she was processing the application, knew that the building was a landmark. Further, on the morning Mrs. Cirrincione secured the permit, she met with Roppolo across the street from the site and then took a picture of the building. Mrs. Cirrincione, acting for Roppolo, had a duty to secure the Landmark Commission approval. Roppolo had a duty to insure that the Rincker House was not destroyed until the Landmark Commission had approved. To hold otherwise would make a mockery of existing city ordinances. The principle that everyone is presumed to know the law has been the cornerstone of our law far too long to require citation.

It therefore follows that the act of demolition was not induced by the employees of the city and Roppolo stood to gain, rather than lose, by the demolition. We find no basis for applying the estoppel theory.

We therefore reverse the judgment against Roppolo and Northwest and remand the matter to the circuit court of Cook County for trial on the question of damages.

II

Next we consider Mrs. Cirrincione. We think the record clearly established she knew the property was designated as a landmark. Two factors clearly support that contention. First, she inspected Rincker House prior to obtaining the demolition permit. The record is replete with evidence that signs were on the building indicating the landmark status. Although the fact that the photograph she allegedly took on the morning of the issuance of the permit and turned over the city was mysteriously missing, there is ample evidence to permit the conclusion the signs were on at the time she photographed it. Secondly, the records of Commonwealth Edison memorialized a telephone discussion with Mrs. Cirrincione on August 21, 1980, the day after the permit was issued, when the fact that there were landmark signs on the property was noted by Mrs. Cirrincione. And the record indicates Cirro wanted the job as work had been slow during the summer of 1980.

Notwithstanding, there is nothing in the record to suggest Mrs. Cirrincione was aware of Roppolo’s obligation to the city to move, restore and reconstruct the Rincker House. Consequently, one of the principal elements to establish fraud or constructive fraud upon the city is missing. For this reason, as to Mrs. Cirrincione, although we do not condone her actions, we conclude that the facts are missing for applying the constructive trust theory, or for finding fraud or constructive fraud. It follows that the same conclusion must be reached as to defendant Cirro.

Ill

The city suggests it is entitled to damages by virtue of Roppolo’s actions. The city suggests the cost to Roppolo of moving the Rincker House and reconstructing it as permitted by the Landmark Commission would have been $200,000 to $250,000. The city argues that by demolishing the building, Roppolo relieved himself of this financial obligation and was thereby unjustly enriched. In addition, the city points out that by the act of demolition, Roppolo caused the destruction of a part of Chicago’s history and heritage that had existed for approximately 130 years.

We do not think the record before us is sufficient for this issue to be resolved at this time. For that reason, as to defendant Roppolo, we are remanding to the circuit court of Cook County the issue of damages.

IV

CONCLUSION

Defendants Mrs. Cirrincione and Cirro urged certain trial errors relative to a motion for change of venue, denial of a jury request, and the trial court’s errors in failing to quash a motion to dismiss and the certification as a class action. In view of our affirming the judgment as to Mrs. Cirrincione and Cirro, it is not necessary to discuss these issues.

The judgment of the circuit court of Cook County: (1) as to defendants Roppolo and Northwest National Bank of Chicago, as trustee under trust agreement dated March 1, 1978, is reversed and remanded for further proceedings in accordance with the views expressed herein; and (2) as to defendants Cirro Wrecking Co. and Lela Cirrincione, is affirmed.

Affirmed in part; reversed in part and remanded.

BERLIN, J., concurs.

JUSTICE STAMOS,

dissenting:

The majority holds that the actions of Roppolo prior to the demolition of the Rincker House amount to a fraud and a constructive fraud, and that therefore the trial court erred in refusing to impose a constructive trust on the property where the Rincker House once stood. However, the evidence which was adduced at trial, taken with the stipulations of the parties, is not sufficient to establish a fraud or a constructive fraud. Because plaintiffs did not make out their cause of action, I would hold that the trial court correctly refused to grant the relief that they sought.

The majority holds that Roppolo is guilty of fraud in connection with the demolition of the Rincker House, stating that fraud is a generic term and quoting a general definition of fraud from People ex rel. Chicago Bar Association v. Gilmore (1931), 345 Ill. 28, 46, 177 N.E. 710. In Gilmore, the court was not required to determine if a cause of action for fraud had been proven by the party seeking relief. That case dealt only with the sanctions to be imposed on an attorney for professional misconduct, and the definition for fraud was given by the court while characterizing the pattern of deception, overreaching, and concealment which the respondent was found to have engaged in, and for which he was disbarred. However, when a plaintiff seeks legal or equitable relief from harm caused by actions of the defendant, it is not enough to characterize those actions as “fraudulent” in a generic sense. The plaintiff, rather, must prove the elements of a cause of action which will justify the court in granting the relief which is sought.

The essential elements of a cause of action for fraudulent misrepresentation are that:

(1) a statement of material fact was made;
(2) the statement was untrue;
(3) the party making the statement knew it was untrue or believed it to be so;
(4) the person to whom the statement was made believed it and relied on it, and was justified in doing so;
(5) the statement was made for the purpose of inducing the other party to act; and
(6) the reliance on the statement by the person to whom it was made cause his injury. See Perlman v. Time, Inc. (1978), 64 Ill. App. 3d 190, 194-95, 380 N.E.2d 1040; Broberg v. Mann (1965), 66 Ill. App. 2d 134, 139, 213 N.E.2d 89.

Fraud does not always consist of an affirmative statement of fact; fraud may also consist of the concealment of a material fact accompanied by scienter, deception, and injury. (Skidmore v. Johnson (1948), 334 Ill. App. 347, 360, 79 N.E.2d 762.) However, where a failure to disclose information is the basis of the cause of action, there must be a duty to speak on the part of the silent party, and an active concealment of the pertinent fact. (See Zanbetiz v. Trans World Airlines, Inc. (1966), 72 Ill. App. 2d 192, 200-01, 219 N.E.2d 98.) Additionally, the facts which are not disclosed must not only be known to the silent party, but must be “unknown to or beyond the reach of” the party relying on the silence. (See Lingsch v. Savage (1963), 213 Cal. App. 2d 729, 738, 29 Cal. Rptr. 201, 206; Prosser, Torts sec. 106, at 697-98 (4th ed. 1971).) Each element of the cause of action for fraud must be proven by clear and convincing evidence. National Republic Bank v. National Homes Construction Corp. (1978), 63 Ill. App. 3d 920, 924, 381 N.E.2d 15.

Constructive fraud differs from actual or intentional fraud in that constructive fraud may be inferred from the facts and circumstances surrounding a transaction regardless of a lack of proof of any actual dishonesty of purpose. (See In re Estate of Neprozatis (1978), 62 Ill. App. 3d 563, 568, 378 N.E.2d 1345.) Constructive fraud is “often equated with a breach or abuse of a confidential or fiduciary relationship.” (Williams v. Estate of Cross (1980), 85 Ill. App. 3d 923, 926, 407 N.E.2d 704.) Where a fiduciary or confidential relationship does not arise as a matter of law, such a relationship must be shown to have existed by clear and convincing evidence. (Collins v. Nugent (1982), 110 Ill. App. 3d 1026, 1036, 443 N.E.2d 277.) No Illinois cases have made a finding of constructive fraud in the absence of a showing that the parties stood in a confidential relationship. (See, e.g., Neprozatis; Williams; Federal Life Insurance Co. v. Griffin (1912), 173 Ill. App. 5, 18.) On the contrary, the absence of a fiduciary or a confidential relationship precludes the imposition of liability for a constructive fraud. (See Gary-Wheaton Bank v. Burt (1982), 104 Ill. App. 3d 767, 774, 433 N.E.2d 315.) Before turning to the question of whether Roppolo is guilty of an actual fraud with regard to the demolition of the Rincker House, it need be noted only briefly that there is nothing in the record which would justify a conclusion that Roppolo stood in any type of confidential relationship with the city of Chicago, its employees, or its citizens, and therefore no constructive fraud can be inferred from the circumstances surrounding this case.

The majority refers to several of the acts and omissions of defendants in support of its conclusion that Roppolo’s conduct meets the definition of fraud. The acts that the majority characterize as fraudulent are: (1) that Roppolo led Mrs. Cirrincione to believe that he was entitled to a demolition permit; (2) that Roppolo falsely induced the city to issue the permit; (3) that Roppolo, using Mrs. Cirrincione as an agent, omitted to advise the employees of the city of his agreement with the Planning Commission to restore the Rincker House; (4) that Roppolo had the duty to ensure that the Landmark Commission reviewed the application for the demolition permit, and that he failed to do so; and (5) that Mrs. Cirrincione, with the intent to mislead, failed to inform the city employees that the application was for a permit to demolish a landmark.

For Roppolo to be guilty of intentional fraud, it must be shown that he made some statement with the intent to deceive, and that that statement was relied upon by the city, inducing it to issue the permit. In the alternative, it must be shown that there was a concealment of a material fact which Roppolo had a duty to disclose, that the fact was unknown to the city, and that the city had a right to rely on Roppolo’s silence. As was previously noted, each of the necessary elements must have been proven by clear and convincing evidence in order to justify a finding by this court that the verdict of the trial court was against the manifest weight of the evidence.

It cannot be gainsaid that Roppolo, by engaging Mrs. Cirrincione to apply for the permit and by neglecting to tell her that the building was a landmark for which no demolition permit would be issued, set in motion a series of events which led to the unlawful destruction of the Rincker House. It likewise cannot be gainsaid that the circumstances surrounding this case are of the type that naturally raise grave suspicions. However, suspicion is not the standard of proof in any civil or criminal proceeding in our courts, and suspicion is not clear and convincing evidence.

The first act that the majority characterizes as fraudulent is Roppolo’s failure to inform Mrs. Cirrincione that he was not entitled to a permit to demolish the Rincker House. This failure to speak may or may not amount to a fraud on Mrs. Cirrincione. She had made it clear to Roppolo, through Rizzi, that she would not go through the application process unless she had a contract to perform the actual demolítion. Had the permit been denied, Roppolo would have gained the benefit of Mrs. Cirrincione’s efforts on his behalf for the price of executing a contract which could never be performed. However, it is difficult to see how Roppolo’s lack of candor with Mrs. Cirrincione translates into a fraud on the city. It must be stressed that the fact that Roppolo made an application for the permit cannot be interpreted as a representation to the city that he was “entitled” to approval of the application. This is so because of the procedures which have been formulated by the city for dealing with properties which have been designated as landmarks.

A designation of a property as a landmark imposes a financial burden on the landowner. The landowner can shift some or.all of that burden to the city by following the procedures set forth in chapter 21 section 21 — 64.1 of the Municipal Code of the City of Chicago. That section provides that when the Building Department receives an application for a permit to alter or demolish a designated landmark, it shall forward the application to the Landmark Commission. The Landmark Commission then considers the application and approves or disapproves it. A disapproval “shall not be deemed by the applicant for permit as a denial thereof.” The Landmark Commission forwards the disapproved application to the finance committee of the city council. The finance committee must give the application prompt consideration, after which it recommends grant or denial of the application. If the committee decides that the application should be denied, its recommendation on the matter to the full city council must include a report on the ways and means by which the city can arrange to lease or sublease the landmark property, contract with the owner for covenants designed to preserve the landmark, acquire the property by eminent domain, or take other action under section 11 — 48.2—2 of the Illinois Municipal Code (111. Rev. Stat. 1981, ch. 24, par. 11 — 48.2—2). Courses of action available to the city under that statute include the creation of transferable development rights in favor of the owner of the landmark. After receiving the recommendation of the finance committee, the city council must pass an ordinance either approving the issuance of the permit or denying the permit. If the permit is denied, the city council must take one of the actions recommended by the finance committee with respect to the property. In short, the city cannot deny a permit to demolish a landmark without also taking action which will result in some form of compensation to the landowner for the burden imposed on him by the landmark designation. The only way to acquire this compensation is to apply for a permit to demolish the landmark. Any owner of a landmark-designated property has the right to apply for a permit to demolish the landmark, and, as is obvious from the foregoing, he is well advised to do so. The mere act of applying for the permit cannot be construed as a representation to the city that the applicant is “entitled” to the issuance of the permit because the Municipal Code encourages him to make the application even if he knows to a certainty that it will be denied. Therefore, it cannot be concluded that Roppolo, by leading Mrs. Cirrincione to believe that he was entitled to a demolition permit, was making any representation which was calculated to deceive the city. It likewise cannot be concluded that Mrs. Cirrincione’s belief in that entitlement in any way induced the city to issue the permit, because she would have handled the application process in the same way had she known the true facts and had she been expressly engaged only to begin the process in order to get the application before the city council.

The majority also holds that Roppolo, through Mrs. Cirrincione, falsely induced the city to issue the permit. In this regard, it must be stressed that Roppolo instructed Mrs. Cirrincione to use the 6366 address on the application despite Mrs. Cirrincione’s suggestion that that was not the correct street address. This fact was not adduced through testimony at trial, but was stipulated to by the parties. That stipulation is binding on this court, and no inference contrary to the stipulation can be drawn on appeal. (See Village of Schaumburg v. Franberg (1981), 99 Ill. App. 3d 1, 4, 424 N.E.2d 1239.) It was also stipulated that Roppolo had twice before applied for demolition permits using the 6366 address. Both of those applications were made before the landmark designation. One permit was denied and one was revoked. It can only be concluded that Roppolo knew that a third application using that address would be rejected, but that he caused the permit to bear that address rather than the correct address. The inducement which caused the issuance of the permit was, in fact, not a result of any act of Roppolo’s, but resulted from the changing of the address on the application at the direction of city employees. Roppolo’s affirmative statements on the face of the application were an inducement to reject rather than to approve the application. The stipulated facts of this case negate any inference that Roppolo attempted to use deception to induce the city’s actions.

The majority also asserts that Roppolo agreed in the application for the permit that all work pursuant to the permit would conform to the Municipal Code, and that therefore he had the duty to secure the approval of the Landmark Commission before demolishing the Rincker House. While it is true that no permit to demolish a landmark can issue without the approval of the Landmark Commission, the Municipal Code does not impose on the applicant the duty of seeking the Commission’s review of an application for a permit to alter or demolish a landmark. Chapter 21, section 21 — 64.1(b) of the Municipal Code provides that “prior to issuing any permit [for the alteration or demolition of a landmark], the Building Department shall forward any application for such permit *** to the Commission on Chicago Historical and Architectural Landmarks within (7) days of the receipt thereof.”

The Building Department clearly has the obligation under the code to process the application in this fashion, and a failure to ensure that the Building Department is doing its job properly can hardly be characterized as a breach of a promise by an applicant for a permit that the work will be performed in compliance with the Municipal Code. The Building Department, by forwarding the application to the Landmark Commission, begins the administrative process which ultimately ends with compensation being paid to the owner of a landmark-designated property. Once the application is made, the process is out of the hands of the applicant. If everyone is presumed to know the law, then it cannot be said that Roppolo acted fraudulently by failing to do something that he knew that the city, and not he, was obliged to do.

The majority also characterizes two omissions of defendants as fraudulent. They are Roppolo’s failure to disclose through his agent (Mrs. Cirrincione) that he had an agreement with the Planning Commission to move and restore the Rincker House, and Mrs. Cirrincione’s failure to disclose to city employees at the permit control desk that the house was a designated landmark.

As has been previously noted, silence can amount to a fraud only when the silent party has a duty to speak. It is difficult to say that such a duty existed with regard to Roppolo’s agreement with the Planning Commission. That agreement in no way affected Roppolo’s right under the Municipal Code to apply for the permit and receive whatever compensation he might be awarded after the permit was denied. It is significant to note that the agreement with the Planning Commission does not specifically state that Roppolo would pay for the costs of moving and restoring the Rincker House, although it does state that Roppolo’s company would perform the work. Therefore, an attempt by Roppolo to have the city assume part, if not all, of the expense of preserving the landmark is not only consistent with his rights under the Municipal Code, but is not in any way inconsistent with his agreement with the Planning Commission. The personnel at the permit control desk could not have refused to process the application had they known of that agreement. This is not to say that they might not have processed it with greater care; but the conclusion that a person would have acted differently if a certain fact were known to him is a conclusion that the fact was material. A conclusion that a fact is material is only one element which must be proven to establish fraud. Although the fact may be regarded as material, Roppolo had no duty to disclose it. Additionally, the fact had little relevance to the application process. It must be reiterated that Mrs. Cirrincione was going through the application process in the expectation that she would perform the demolition contract, and that Roppolo was less than candid with her when he avoided informing her that the house was a landmark which was not likely to be demolished, but rather was to be moved and restored. However, it cannot be concluded that those omissions were calculated to deceive the city. It was stipulated between the parties that Roppolo instructed Mrs. Cirrincione to use the 6366 address on the application. By that act, he was providing the city with all the information it needed to determine that the structure was a landmark and that no demolition permit should be issued. Having disclosed all the material facts which were necessary for the city to handle the application correctly, Roppolo was under no duty to disclose more.

The foregoing discussion is equally applicable to the issue of whether Mrs. Cirrincione’s failure to tell the city employees that the Rincker House was a landmark was a fraudulent concealment which can be imputed to Roppolo. Additionally, that omission cannot be characterized as a fraudulent concealment because such a concealment must be of a fact which was not only known to the silent party, but which was also unknown or unavailable to the party which relied on the silence. It is evident from the stipulated facts that the city, through its computerized record keeping system, has far superior access to facts concerning the status of any particular piece of property than does the applicant for a building permit. Both the 6366 address and the 6384 address were conspicuously visible on the application, and it would have been a simple matter to enter both addresses in the computer. Indeed, it would have been prudent to do so because the presence of the two addresses should have indicated to a reasonable person that there was some confusion concerning the correct address of the structure to be demolished. Because the facts not expressly disclosed to the city by defendants were readily accessible to the city, the failure to disclose those facts cannot be characterized as a fraud. It is also questionable whether the employees of the city department which collects, stores, and retrieves the information which the city claims should have been disclosed to those employees could ever be said to have justifiably relied on the silence of an applicant for a permit. Therefore, it cannot be concluded that any of the omissions of defendants were of the type which support a finding that defendants perpetrated a fraud through their silence.

This case presents a set of facts which demand a choice between a determination that a series of unlikely fortuitous accidents and errors occurred and a determination that the destruction of the Rincker House was the result of fraudulent calculation and deception. The latter conclusion would comport with the natural suspicions that any reasonable person would entertain when confronted with the circumstances of this case. Truly a determination that the destruction of the Rincker House was the result of inexplicable inadvertence rather than fraud seems naive at first blush. However, there is no alternative to that determination in the absence of clear and convincing evidence that a fraud was committed. No matter how suspicious the circumstances surrounding a transaction, the party complaining of the transaction is not released from the obligation to prove the elements of the cause of action.

Therefore, I would affirm.

       The application which bears the signature of Roppolo contains the following language immediately above the signature: “[W]e hereby certify that the statements in the application are true and correct to the best of our knowledge and belief, and that all work under the proposed permit will conform to the Municipal Code of the City of Chicago.”

       The cause was tried as a duly certified class action brought on behalf of the citizens of Chicago. Although defendants Cirrincione and Cirro challenge the standing of the individual plaintiffs, the resolution of that question is not determinative of the rights of the city.

       Roppolo’s office was located in the same block as the Rincker House, but across Milwaukee Avenue, a wide, heavily traveled thoroughfare.

       The dissent notes this agreement does not specifically state Roppolo would pay the costs of moving and restoring. Although we agree the word “costs” is not literally included, we fail to understand how the work entailed by such acts can be done without “costs.”

       The dissent suggests by using the address 6366 “Roppollo was under no duty to disclose more.” This disregards his specific duty to the Landmark Commission.

       The dissent discusses the financial burden imposed on landowners by the designation of property as a landmark, along with procedures to be followed by the Landmark Commission and city council upon the filing of an application to alter or demolish a landmark. As no application was ever filed with the Landmark Commission, we question the relevance of that discussion.


source: Caselaw Access Project

author: JUSTICE JIGANTI

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY BROWN, Defendant-Appellant.
    First District (4th Division)
    No. 81—1591
    Opinion filed March 31, 1983.

      James J. Doherty, Public Defender, of Chicago (Philip E. Mullane, Assistant Public Defender, of counsel), for appellant.
    Richard M. Daley, State’s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Daniel E. Jordan, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE JIGANTI

delivered the opinion of the court:

Following a jury trial, the defendant, Larry Brown, was found guilty of the murder of Charles Harris and was subsequently sentenced to serve 30 years’ imprisonment. The defendant was found not guilty of armed robbery and attempted armed robbery. On appeal, the defendant argues that statements made by the prosecutor during the State’s rebuttal closing argument deprived the defendant of a fair trial and that the trial court improperly allowed certain State witnesses to testify regarding inadmissible hearsay. The defendant further contends that the cumulative effect of these trial errors prejudiced him to such an extent that they contributed to his conviction and were not harmless beyond a reasonable doubt. For these reasons, the defendant asks this court to reverse his conviction or, in the alternative, remand his case for a new trial.

On July 14, 1979, Kirby Hoskins and Roy Richardson entered an alley with the defendant following a brief conversation during which the defendant asked the other two men if they wanted to earn some money. Richardson testified that upon entering the alley, the defendant pulled out a gun, fired a shot into the air and announced a robbery. He further testified that once it appeared that the two men had little or no money, the defendant threatened to kill them both. Meanwhile, the victim approached Leonara Harrison, Pearline Posey and Dianne Clark, who were standing on a street comer near the alley, and asked Harrison where he could find Richardson. The victim then entered the alley and encountered the defendant, Hoskins and Richardson. Richardson testified that following a brief verbal altercation between the victim and the defendant, the defendant fatally shot the victim four times. The jury found the defendant guilty of the victim’s murder, but acquitted the defendant on the armed robbery and attempted armed robbery charges which stemmed from the alleged robbery of Hoskins and Richardson. Leonara Harrison and Roy Richardson testified as State witnesses. Richardson was the only eyewitness to testify regarding the alleged robbery and the alleged murder. Hoskins, Posey, Clark and the defendant did not testify at trial.

The defendant first argues that allegedly improper comments were made by the prosecutor during the State’s rebuttal closing argument. As the result of these comments, the defendant contends that he was denied the fair and impartial trial to which he was constitutionally entitled. We agree. We find the prosecutor’s comments to have been so reprehensible as to constitute a shameful affront to the court system of this State and consequently are compelled to remand this cause for a new trial.

In essence, the prosecutorial comments cited to us by the defendant can be divided into two categories. The first group of comments is made up of statements that were objected to by defense counsel at trial and the objections were consequently sustained by the trial court:

“Ladies and gentlemen, if you ever wondered why criminals get away with things in today’s society, why there is a problem "with crime on the street, why people are afraid to come forward—
DEFENSE COUNSEL: Objection.
THE COURT: I will permit counsel—
PROSECUTOR: — (Continuing) to the police, you have just witnessed one of the reasons, one of the reasons why criminals run these streets and why they run those projects to the dismay of those poor people that have to live there. For you have just witnessed someone get up and had the unmitigated gall to criticize someone who has testified in this trial, who has taken that stand and behind that person’s back when that person is no longer in the court here today and make one of the most vicious attacks I have ever heard in my 10 years as a State’s Attorney on a witness that has testified in a case.
That is one of the reasons why people are fed up with this system because they know if they come to Court they are going to be cross-examined by some slickster like him, some mouthpiece like him who is paid to defend guys like this, guys that walk around with—
DEFENSE COUNSEL: Objection.
THE COURT: Sustain the objection.
* * *
PROSECUTOR: *** [H]e and his type, ladies and gentlemen, are the type of people that run around with tattoos of stars on their cheeks, are the type of people that run and pillage those project areas.
DEFENSE COUNSEL: Objection.
PROSECUTOR: Terrorizing the citizens that live there.
THE COURT: Sustain the objection.
* * *
Ladies and gentlemen, you folks know the law. It’s common knowledge. We have to bring someone to trial within 120 days. When he keeps asking for continuances and they keep changing lawyers for two years, we can’t try the case. And you know why he did that because he knew the witnesses in this case. He knew who those witnesses were.
DEFENSE COUNSEL: Objection.
PROSECUTOR: He knew they would move in the projects.
THE COURT: I would sustain the objection now ***
* * *
* * * That’s what he did, ladies and gentlemen. Whoever said that? How many lies are they going to tell in this case?
DEFENSE COUNSEL: Objection.
PROSECUTOR: Reasonable inferences, ladies and gentlemen.
THE COURT: Mr. [Prosecutor], there is an objection pending.
I will sustain the objection, ladies and gentlemen, ask you to disregard it. I will direct the State please not to make any more direct comments about what you think of counsel’s conduct. You may comment upon his argument, not on his conduct.”

The second category of statements at issue on appeal is comprised of comments made during rebuttal closing arguments that were never objected to by defense counsel:

“*** [R0y Richardson] [hjaving to bear having to take off your coat and show someone, some slickster your arms ***
* * *
*** And in the same vein, ladies and gentlemen, the mouthpiece would ask you, where is Kirby? Where is Dianne? Where is Pearline? Sure, Kirby is on the west side. I know where he’s at, but he ain’t going to come into court and testify because Kirby Hoskins, Dianne and Pearline heed the warning that he issued on that morning when he told Charles Harris *** that is why those people aren’t in court, ladies and gentlemen.
* * *
*** Mr. Murphy (defense counsel) very slickly implied about how the defendant might run***
* * *
Ladies and gentlemen, if you find Larry Brown not guilty, you can then come back later today and tomorrow and walk him out of the courtroom smiling at what he’s done.”

Regardless of his guilt or his innocence, every defendant is constitutionally entitled to a fair and impartial trial. (People v. Savage (1967), 84 Ill. App. 2d 73, 228 N.E.2d 215.) In the realm of closing arguments, there has developed a growing concern over improper prosecutorial arguments that exceed the boundaries of fairness and impartiality inherent in our system of adversary justice. (See, e.g., United States v. Spain (7th Cir. 1976), 536 F.2d 170, 174-76; People v. Baptist (1979), 76 Ill. 2d 19, 389 N.E.2d 1200.) It is against this backdrop that we address the imprudent comments that were uttered by the prosecutor in the instant cause.

We shall consider both the comments that were objected to by the defense and those that were not during our examination of this issue on appeal. We believe that the statements that were objected to were so substantially prejudicial that the taint of their prejudicial effect to the defendant could not be cured by the trial court’s sustaining of the defense objections. (See People v. Cepek (1934), 357 Ill. 560, 570, 192 N.E. 573, 578 (“The fact that the court sustained objections to the prejudicial statements did not cure the errors in the case. [Citation.] Driving a nail into a board and then pulling the nail out does not remove the hole”).) Further, we believe that the prosecutorial statements that were not objected to by the defense substantially prejudiced the defendant’s right to a fair trial and constituted a material factor in his conviction. Only one of the two eyewitnesses testified at trial. His testimony established that he had been convicted of several felonies and that he had had a long history of heroin use. The jury apparently chose to believe the eyewitness’ testimony only in respect to the murder charge because they acquitted the defendant on both the armed robbery and attempted armed robbery charges. We therefore do not believe that the evidence of the defendant’s guilt was so overwhelming as to outweigh the prejudicial effect of the prosecutor’s comments. Where there are numerous instances of improper prosecutorial remarks, a reviewing court may consider their cumulative impact, rather than assessing them in isolation. (People v. Whitlow (1982), 89 Ill. 2d 322, 433 N.E.2d 629.) We find that the comments that were objected to, taken together with those that were not, were designed solely to arouse the prejudices of the jury without throwing any light upon the question of the defendant’s guilt and that therefore, a new trial is required. See People v. Savage (1967), 84 Ill. App. 2d 73, 228 N.E.2d 215; People v. Glickman (1960), 27 Ill. App. 2d 379, 169 N.E.2d 815; People v. Dukes (1957), 12 Ill. 2d 334, 146 N.E.2d 14.

Specifically, in the instant case, the prosecutor persisted in calling defense counsel a “slickster,” “a mouthpiece” and a liar despite the already sustained defense objections. These were not inadvertent errors. Arguments of a prosecutor which charge a defendant’s counsel with attempts to free his client by trickery tend to deprive the accused of a fair trial. (People v. Weathers (1975), 62 Ill. 2d 114, 338 N.E.2d 880; People v. Freedman (1954), 4 Ill. 2d 414, 123 N.E.2d 317; People v. Savage (1934), 358 Ill. 518, 193 N.E. 470; see also People v. Gilyard (1970), 124 Ill. App. 2d 95, 260 N.E.2d 364 (such remarks deemed improper but not found prejudicial under facts of the case).) We find such comments to be inflammatory in the extreme and they will not be tolerated by this court.

In addition, the prosecutor repeatedly intimated that the reason that Hoskins, Posey and Clark did not testify at trial was because the defendant had somehow intimidated them by threatening retaliation if they testified against him. In fact, no testimony was offered at trial to explain the absence of the three witnesses. These types of remarks were therefore without foundation and were clearly calculated to prejudice the defendant in the eyes of the jury. (People v. Whitlow (1982), 89 Ill. 2d 322, 433 N.E.2d 629; People v. Glickman (1960), 27 Ill. App. 2d 379, 169 N.E.2d 815; People v. Savage (1967), 84 Ill. App. 2d 73, 228 N.E.2d 215.) Similarly, counsel’s statement that inferred that the defendant persisted in asking for continuances because he knew that "witnesses would become unavailable is also without foundation and calculated solely to arouse the prejudices of the jury.

In determining whether a prosecutor’s closing comments are prejudicial, reference must be made to the content of the language used, its relation to the evidence, and the effect of the argument on the rights of the accused to a fair and impartial trial. (People v. Franklin (1976), 42 Ill. App. 3d 408, 355 N.E.2d 634.) Taken as a whole, we cannot say that the prosecutorial comments referred to above were harmless beyond a reasonable doubt or did not contribute to the defendant’s conviction. (People v. Weathers (1975), 62 Ill. 2d 114, 338 N.E.2d 880; see also People v. Weinger (1981), 101 Ill. App. 3d 857, 428 N.E.2d 924.) And we do not think it unreasonable to require a prosecutor who acts as a representative of the People of the State of Illinois to demonstrate respect and due regard for the defendant’s constitutionally protected right to a fair and impartial trial. “It is the court’s duty, as well as the prosecutor’s duty, to see to it that every defendant has a fair and impartial trial, and where they have not done so, and prejudicial and reversible error is willfully committed and willfully allowed, they must accept the responsibility of the reversal of the judgment and sentence so obtained.” (People v. McGeoghegan (1927), 325 Ill. 337, 356, 156 N.E. 378, 385.) We therefore find it necessary to remand this cause for a new trial.

The second issue raised by the defendant on appeal is whether the trial court improperly permitted the officers who investigated the murder and robbery at issue in this case to testify about their conversations with various witnesses during the course of their investigation. The defendant objected to this line of testimony at trial solely on hearsay grounds and again raises the hearsay issue on appeal. In contrast, the State urges that the statements were not hearsay because they were offered merely to show the steps that each officer took during the course of his investigation rather than to prove the truth of the matters asserted in the statements. We believe that the State is correct and we therefore find that the trial court properly overruled the defendant’s hearsay objection.

In essence, the investigators testified regarding conversations they had with other persons which ultimately led them to apprehend the defendant. Representative of this line of testimony are such statements as that the defendant frequented Willie’s Inn and that Rabbit was the name of the defendant’s girlfriend; that an aunt of the defendant lived at a certain address; that the defendant was staying at the Park Row Hotel; that the defendant received several telephone calls at the hotel; and that certain telephone numbers that the defendant called from the hotel belonged to his sister and his aunt.

Hearsay is testimony of an out-of-court statement offered to establish the truth of the matter asserted therein, and resting for its value upon the credibility of the out-of-court asserter. (People v. Rogers (1980), 81 Ill. 2d 571, 411 N.E.2d 223.) In the instant case, the above statements were not offered by the State to prove the truth of their contents. For example, statements regarding such facts as the name of the defendant’s girlfriend or the address of his aunt were not at issue in this case and were not offered by the prosecution to prove the truth of the matters asserted in the statements. Rather, testimony in a criminal prosecution regarding investigatory procedures which is entirely within the knowledge of the officer who is testifying is not inadmissible hearsay where the purpose of such testimony is limited to show why the officer acted as he did. (People v. Thomas (1975), 25 Ill. App. 3d 88, 332 N.E.2d 597.) We believe that the testimony in the instant case fits under this heading and we therefore find that the trial court properly overruled the defendant’s hearsay objection. While we question the relevancy of this testimony to the issues presented at trial, the defendant objected to the testimony solely on hearsay grounds and we therefore need only decide the hearsay question.

However, because we find that the prosecutor’s comments during closing arguments constituted reversible error, we remand this case for a new trial.

Reversed and remanded.

JOHNSON and ROMITI, JJ., concur.


author: PRESIDING JUSTICE STOUDER

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARK SCHEIDT, Defendant-Appellant.
    Third District
    No. 82—67
    Opinion filed March 22, 1983.

      Robert Agostinelli and Frank W. Ralph, both of State Appellate Defender’s Office, of Ottawa, for appellant.
    Edward F. Petka, State’s Attorney, of Joliet (John X. Breslin and Patricia Hartmann, both of State’s Attorneys Appellate Service Commission, of counsel), for the People.
   PRESIDING JUSTICE STOUDER

delivered the opinion of the court:

The defendant, Mark Scheidt, was convicted of the murder of Gary L. Shimerda following a jury trial in the circuit court of Will County. (111. Rev. Stat. 1979, ch. 38, par. 9 — l(aXl).) He was sentenced to a term of 28 years of imprisonment.

During the trial, State witness Debbie Brown testified that on August 2, 1980, at about 10 p.m., she went to the Welcome Inn Tavern with Geri Hooper. The defendant, Gary Shimerda, and Gordon Weitting were also at the Welcome Inn. While in the tavern, the defendant told Brown, Weitting, and another person that he wanted to kill Shimerda because Shimerda knew too much about a burglary. Later, the defendant repeated his threat to kill Shimerda.

The tavern closed at about 2:45 a.m. on August 3, 1980, but the patrons stayed outside for a short time. Then Brown, Whitting, and Shimerda left with the defendant in his car. Brown said she accepted the defendant’s offer of a ride home earlier that night when Geri Hooper had to leave. After leaving the tavern, they went back within a few minutes and Weitting took the telephone number of one of the girls standing outside the bar. The four then decided to go to Catfish Days, a festival held in Wilmington, Illinois. On the way to Wilmington, the defendant, who was seated next to Brown, told her he wanted to kill Shimerda, who was riding in the back seat. Weitting was driving.

When they arrived in Wilmington, they learned that Catfish Days was over. They decided to go to a large swimming lake instead, which was called the “ropes.” On route to the “ropes,” the defendant told Weitting to stop the car. The defendant and Weitting walked around for a couple of minutes and then returned to the car. They stopped again at the “ropes” parking lot and all but Shimerda used the restroom facilities. When they got back in the car, Brown drove.

Brown testified that the defendant ordered her to pull off the road, and she complied. As the defendant stepped out of the car, Weitting told her to get out and pushed her. Weitting and Brown went across the road, approximately 25 feet away from the car. The defendant had taken out the shotgun he had placed between the seat and the front passenger door earlier that night. The defendant walked around the car and opened Shimerda’s door, ordering him out of the car. He told Shimerda he did not want to get the car messy. Shimerda would not get out of the car.

The witness said she heard Shimerda say something which sounded like, “I don’t deserve it.” The defendant ordered him out of the car again. Brown said there was a brief silence and then she heard a shot. The defendant asked Weitting to help him carry Shimerda out of the car and put him in a nearby ditch. At first Weitting refused, but he agreed after a second request from the defendant. Brown said she turned around and saw the defendant and Weitting drag Shimerda from the car and into the ditch. The three then left the area.

On the way toward Joliet, Brown testified that the defendant ap- • peared happy and proud. He kept saying, “Such a man, I’m real cool now.” The defendant told Weitting to tell everyone in the “Bud gang,” a group of people in Green Tree who drank Budweiser beer, that he was “real cool,” but not to tell them what he did.

The defendant removed the shell from the shotgun and threw it out the car window. Before arriving in the area where Brown lived, the defendant told Weitting that he trusted him but he did not know about trusting Brown. The defendant reminded Brown and Weitting not to tell anyone, and then he told Weitting that if he needed anybody taken care of, he should tell the defendant. The defendant explained that he had done it before and could do it again.

Brown testified that she and a friend went back to the ditch later that day to see if Shimerda’s body was still there. After seeing it, they went to the Wilmington police department and reported the shooting. Then she took the police to the body.

During cross-examination by the defense counsel, Brown admitted lying to Lynn Jencons, an investigator with the Will County sheriff’s police. Brown told Jencons on August 3, 1980, that the defendant dragged Shimerda’s body to the ditch by himself. She had told Jencons that the defendant showed his gun to everyone in the tavern, while her trial testimony contradicted this prior statement. No other witnesses at the tavern recalled seeing the gun. Brown had also failed to tell Jencons that the defendant wore a red bandanna.

The defense counsel questioned Brown about the burglary she referred to on direct examination. She stated that the burglary was at the Welcome Inn Tavern. It was common knowledge that the defendant or his brothers burglarized the tavern prior to August 2, 1980. Brown believed that this burglary must have been the one to which the defendant referred. Finally, she admitted giving conflicting statements concerning the position of herself and Weitting at the time of the shooting.

The State also introduced the testimony of other witnesses concerning the location and condition of Shimerda’s body. A search of the defendant’s car on August 5, 1980, revealed stains and blood in the back seat, as well as a stained T-shirt. Expert testimony established that the blood type was not inconsistent with Shimerda’s blood type.

The defendant presented his defense after his motions for a directed verdict and a mistrial were denied. Joe Lopez was the first defense witness. Lopez lived next door to the defendant, who lived with his brother, Richard Scheidt, Gary Shimerda and Richard Cunningham. At about 2 or 2:30 a.m. on August 3, 1980, Lopez said he saw someone get into the defendant’s car but it was not the defendant. The person he saw drive off had shorter, darker hair than the defendant and did not wear a red bandanna. Michael Scheidt, the defendant’s brother and Lopez’ roommate, corroborated this testimony.

Timothy Scheidt, the defendant’s brother, testified that he went to the defendant’s house on August 3, 1980, at approximately 12 or 12:30 am. He saw the defendant sleeping on the couch. The defendant’s car was not there.

Richard Scheidt testified that he returned to his house on the morning of August 3, 1980. He saw the defendant passed out on the couch and noticed the back doors were open. Richard looked out and saw his uncle, Richard Cunningham, washing out the back seat of the defendant’s car with a hose. He talked to Cunningham and when he left, the defendant was still passed out on the sofa.

The bartender at the Welcome Inn Tavern, Joseph Palacios, also testified for the defense. He said that Debbie Brown frequently tried to buy drinks for Gordon Weitting but he would refuse to accept them. Brown had told Palacios that she could not get over Weitting. Palacios also stated that Weitting was a regular patron of the tavern and often wore a red bandanna, one of his “trademarks.”

The defendant sought to introduce testimony indicating that he was not involved in the burglary of the Welcome Inn to which Debbie Brown testified. The State filed a motion in limine to exclude any evidence concerning the burglary because it was irrelevant. After lengthy argument by the State and the defense, the court granted the State’s motion in limine to exclude the evidence.

The defendant raises two issues on appeal. The second one is addressed first.

During voir dire, two panels of four jurors were accepted by both the State and the defense and were sworn. A third panel was accepted by the State and the defense but before they were sworn, the court asked each of the four if they had any reservations about serving with an unbiased mind. Wanda Nagel responded that it was a tremendous responsibility, and she did not like the idea that she had this responsibility. She did believe, however, that she could handle the responsibility, and, if chosen, would do so to the best of her ability.

Upon hearing this response from Ms. Nagel, the State moved for permission to reopen the final panel in order to exercise a peremptory challenge to Ms. Nagel. The State said there was an insufficient basis for a challenge for cause. The defendant objected to the State’s motion, but it was allowed. The court said it would “reopen the last panel for pre-emptory [sic] cause and otherwise.” Ms. Nagel was then excused. A defense motion for a mistrial in regards to this procedure was denied.

The defendant claims that the trial court erred in permitting the State to reopen an accepted panel of jurors in order to exercise a peremptory challenge toward one juror. He relied on Mayers v. Smith (1887), 121 Ill. 442, 13 N.E. 216, for the proposition that there is no right to a peremptory challenge to a juror after the juror has been accepted and the panel tendered but not sworn.

Once a juror has been accepted and sworn, neither party has the right to challenge the juror. (People v. Gamboa (1975), 30 Ill. App. 3d 242, 332 N.E.2d 543.) Nor does a party have the right to peremptorily challenge a juror once he is accepted but not yet sworn. (People v. Gray (1911), 251 Ill. 431, 96 N.E. 268; Mayers v. Smith (1887), 121 Ill. 442, 13 N.E. 216.) However, the court in Mayers expressly stated that “We decide or intimate nothing in respect of a court’s discretion as to the allowance of a peremptory challenge in such a case.” Mayers v. Smith (1887), 121 Ill. 442, 449-50, 13 N.E. 216, 218.

The court stated in People v. Joyce (1910), 154 Ill. App. 13,17:

«*** yjg court wag not required to permit a peremptory challenge of a juror after he had been accepted by both parties, though the court in the exercise of a sound discretion might have done so.”

The court further stated that if the party seeking to challenge a juror after accepting him had shown the court that information had reached him for the first time which, if he had known, would have caused him to peremptorily challenge the juror, it would have been within the court’s power to allow the party the peremptory challenge.

In the instant case, it was a matter within the court’s discretion whether to allow the State to peremptorily challenge a juror it had previously accepted but who had not been sworn. While the State did not have a right to exercise a peremptory challenge nor a basis for challenge for cause, the court had the power to allow the State to exercise a remaining peremptory challenge. The court’s discretion to grant such a challenge after acceptance extended to the defendant as well. Therefore, the trial court did not err in reopening the previously accepted panel to allow the State to exercise a peremptory challenge. Under the facts of this case, the trial court exercised its discretionary powers properly. In any event, the defendant has failed to establish any prejudice as a result of the reopening and peremptory challenge. People v. Ward, (1965), 32 Ill. 2d 253, 204 N.E.2d 741.

The defendant contends in his other issue on appeal that the trial court committed reversible error by excluding certain defense evidence. He claims that he had evidence which rebutted the testimony of Debbie Brown, which attributed a motive to the defendant for the murder of Gary Shimerda. The defendant sought to introduce the evidence in order to disprove his commission of the burglary, thus rebutting a motive for murder, and to impeach Brown. The defendant asserts that by excluding this evidence the court denied him a fair trial and due process.

In reviewing the record, we note the simple statement made by Debbie Brown during her testimony when asked by the State what, if anything, the defendant said to her prior to the shooting. Her reply was:

“Well, we were just talking about different things for a while, and then he brought up that he wanted to kill Gary Shimerda, because he knew too much about a burglary.”

Her reference to a burglary was not presented as evidence of another crime but merely as part of the defendant’s statement. The statement as a whole showed an intent on the defendant’s part to kill Shimerda. It did not establish a previous crime committed by the defendant, since it was so vague.

It was the defense which brought out the incriminating details of the burglary mentioned by Brown. On cross-examination, the defense counsel inquired as to which burglary the defendant meant, and Brown implicated the defendant, or his brothers, in a July 31, 1980, burglary of the Welcome Inn. Until the defense brought this information forward, Brown’s reference to a burglary did not present evidence of another crime by the defendant since the initial statement was nonspecific, and the State did not elicit any other details of the burglary.

The statement by Brown on direct examination was not presented as evidence of motive by the State. The State did not argue motive, and it was not required to prove motive. (111. Rev. Stat. 1979, ch. 38, par. 9 — 1; People v. Draper (1979), 79 Ill. App. 3d 749, 398 N.E.2d 1023.) The evidence that the defendant did not commit the July 31, 1980, burglary was properly excluded, because it was irrelevant and did not rebut evidence established by the State.

The excluded evidence that the defendant did not commit the burglary would not have impeached Debbie Brown. Her testimony merely repeated a statement made to her by the defendant concerning an intention to kill Shimerda. Whether the defendant actually committed the burglary does not affect the statement she claims he made. Nor would the evidence impeach her on what she heard about the burglary. Brown said she heard that the defendant or his brothers burglarized the Welcome Inn. The excluded evidence would not affect whether Brown heard this information, and, at any rate, the evidence would have tended to corroborate the information, i.e., that the defendant’s brother committed the burglary.

While a defendant may prove any fact or circumstance tending to show that the offense was committed by a person other than himself (People v. Dukett (1974), 56 Ill. 2d 432, 308 N.E.2d 590), the excluded evidence in the instant case would not have exculpated the defendant of the murder of Shimerda and linked Gordon Weitting to the murder. The evidence would have shown Weitting, as well as others, including the defendant, involved in the burglary. Any link between Weitting and the murder of Shimerda was nebulous in light of the eyewitness testimony against the defendant. The excluded evidence would have reinforced the fact that the defendant was indirectly involved in the July 31, 1980, burglary and that his brother actually committed the crime. Reviewing the excluded evidence, we believe the trial court was correct in its evaluation that it would have harmed the defendant. It cast as much guilt on the defendant as any other person involved in the burglary. Therefore, it was properly excluded.

Since the excluded evidence would more likely have harmed the defendant, the statements made by Brown during cross-examination were left before the jury without explanation. First, this information was brought out by the defendant. Second, any reference to the burglary was harmless error in view of the evidence against the defendant. There was eyewitness testimony that the defendant committed the murder, as well as physical evidence linking him to the offense. Therefore, the conviction is sustained.

Based on the foregoing reasoning, the judgment of the circuit court of Will County is affirmed.

Affirmed.

ALLOY and BARRY, JJ., concur.