Fortech v. R.W. Dunteman Company ( 2006 )

First Division
June 30, 2006
No. 1-05-1526
FORTECH, L.L.C., )
)
Plaintiff/Counterdefendant )
)
v. )
)
)
R.W. DUNTEMAN COMPANY, INC., DU-KANE )
ASPHALT COMPANY, INC., ALLAN J. ) Appeal from
DUNTEMAN, and PAUL J. DUNTEMAN, ) the Circuit Court
) of Cook County
Defendants )
) 94 M1 704556
(Du-Kane Asphalt Company, Inc., )
) Honorable
Counterplaintiff/Third-Party ) Ronald F. Bartkowicz,
Plaintiff/Appellant; ) Judge Presiding
)
K-Five Construction Company, )
)
Third-Party Defendant/Appellee; )
)
Donald West, )
)
Third-Party Defendant). )
JUSTICE McBRIDE delivered the opinion of the court:
Third-party plaintiff Du-Kane Asphalt Company (Du-Kane)
appeals from the circuit court's order resolving cross-motions
for summary judgment in favor of third-party defendant K-Five
Construction Corporation, incorrectly sued as K-Five Construction
Company (K-Five), as to Du-Kane's claims of conversion and unjust
enrichment. K-Five was operating as an agent of Du-Kane's
landlord in 1997 when it allegedly converted and was unjustly
enriched by improving the rented real property with road
construction material that Du-Kane had stockpiled at the site.
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Du-Kane argues the circuit court determined an agent cannot be
held liable for tortious conduct undertaken at its principal's
direction, and that this determination was erroneous because
conversion and unjust enrichment are strict-liability claims.
Du-Kane also argues the circuit court further erred by
disregarding clear evidence of K-Five's conversion and unjust
enrichment. K-Five responds that Du-Kane has misconstrued the
court's ruling and that the argument about an agent's liability
in tort is misdirected because the cross-motions for summary
judgment established Du-Kane would be unable to meet the elements
of its two tort claims. K-Five argues the most conspicuous
defects in Du-Kane's suit are that it no longer had a right to
possess the real property and that the material at issue was
essentially worthless debris which Du-Kane had abandoned.
The following pertinent facts are disclosed by the record.
The road construction materials at issue were stored on real
property owned by the Metropolitan Water District of Greater
Chicago (District). The site consists of almost 21 acres in
Lemont Township situated southwest of Lemont Road between the Des
Plaines River and the Chicago Sanitary and Ship Canal. In 1954,
the District entered into a 50-year lease for 100 acres in that
area, including the 21 acres at issue, with Reclamation
Construction Corporation (Reclamation). A subsequent series of
subleases and assignments put appellant Du-Kane and Du-Kane's
sister corporation, R.W. Dunteman & Company (R.W. Dunteman), in
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possession of the 21 acres as of 1986. By 1989, there was a
dispute amongst some of the subleasees as to which one of them
was responsible for the Cook County real estate taxes. In 1994,
Reclamation issued a notice to quit and demand for possession and
filed an eviction action against several of the subleasees in the
circuit court of Cook County. In 1996, while its eviction action
was pending, Reclamation sublet the property to Fortech L.L.C.
(Fortech), and assigned all its rights to the real property,
including its rights in the pending litigation, to Fortech. For
reasons that are not made apparent by the record on appeal,
Fortech initiated an entirely new eviction action against R.W.
Dunteman and Du-Kane in 1996, 96-M1-739824, but continued to
pursue the original case, 94-M1-704556.
In the 1996 action, Fortech obtained an order for possession
of the premises. The order was entered on May 22, 1997, and,
although it specified, "3. Enforcement of this judgment is
stayed until June 21, 1997," it is undisputed that as early as
May 23, 1997, Fortech's contractor, appellee K-Five, entered the
property to begin readying it for Fortech's use. Fortech
intended to make "GFRC" or glass fiber reinforced cement products
such as architectural cladding, and its operation required a
manufacturing facility, a curing shed, and unenclosed curing
space. Our own records indicate R.W. Dunteman and Du-Kane filed
a notice of appeal in the 1996 action and requested an extension
of the stay of execution of the order for possession, but that on
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June 8, 1997, this court denied the motion to stay and the appeal
was later dismissed without further briefing by the parties. The
record on appeal includes a related order entered in the circuit
court on July 8, 1997:
"This cause coming on to be heard upon
[plaintiff Fortech's] emergency motion to
compel defendants [R.W. Dunteman, et al.] to
remove piles of debris, due notice having
been served and the Court being advised: IT
IS ORDERED that plaintiff's motion is granted
and defendants shall have 10 days or until
July 18, 1997 to remove the remaining debris
[illegible]. Plaintiff agrees to waive any
contempt proceeding [illegible]."
In the 1994 action, Fortech filed a sixth-amended complaint
which is still pending in the circuit court. The action was
transferred from the circuit court's forcible entry and detainer
division to its law division, since Fortech is seeking roughly
$300,000 in damages and attorney fees, rather than possession of
the property, from R.W. Dunteman, Du-Kane, and corporate officers
Paul Dunteman and his brother Allan Dunteman. Fortech's claimed
damages include 33 months' back rent accruing between 1994 and
1996, lost profits resulting from Fortech's inability to set up
full operations while the defendants' materials remained on the
site, the costs of restoring the real property to "good clean and
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orderly condition" by removing debris and addressing
environmental contamination, and punitive damages for wilfully
trespassing.
Du-Kane responded with a counterclaim against Fortech and a
third-party complaint against Fortech's contractor, K-Five, which
is the third-party action at issue in this appeal. Du-Kane
brought claims of conversion and unjust enrichment against both
defendants and sought approximately $300,000 in compensation.
Du-Kane indicated that R.W. Dunteman is in the business of land
excavation and road and highway construction and that Du-Kane
operated an asphalt manufacturing and recycling facility on the
Lemont property and also maintained stockpiles of its raw
materials. Further, however, as Fortech's agent, K-Five entered
the land, graded the site, created a road, a parking lot, and an
extensive berm, and tortiously incorporated Du-Kane's stockpiles
of sand and crushed concrete products into the improvements.
As indicated above, cross-motions for summary judgment were
filed. Summary judgment is to be granted "without delay if the
pleadings, depositions, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." 735 ILCS 5/2-1005(c) (West 2002); Turner
Investors v. Pirkl, 338 Ill. App. 3d 676, 681, 789 N.E.2d 323,
327 (2003). Summary judgment is considered a drastic measure but
is an appropriate means of expeditiously disposing of a lawsuit
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in which the right of the moving party is clear and free from
doubt. Turner Investors, 338 Ill. App. 3d at 681, 789 N.E.2d at
327. Where reasonable persons could draw divergent inferences
from undisputed facts, summary judgment must be denied. Turner
Investors, 338 Ill. App. 3d at 681, 789 N.E.2d at 327. On
November 3, 2003, the circuit court found "there are no facts to
establish there was complete abandonment of the [stockpiled]
property [by Du-Kane], which then allowed [Fortech] to do what
they wanted to do [and use the materials in the improvements it
made to the site]." Accordingly, the court granted Du-Kane's
motion for summary judgment against Fortech on the unjust
enrichment count, found that the value of materials "moved
around" the site was $280,800, and entered judgment against
Fortech for that amount. However, Du-Kane states in its
appellate brief, "The Circuit Court later found that issues of
fact remained concerning the exact dollar amount of Du-Kane's
damages [for unjust enrichment] and vacated the amount of the
award. The judgment against Fortech [as to the elements of
unjust enrichment], however, remains." The record on appeal does
not disclose why or when the court revisited its unjust
enrichment ruling against Fortech.
With respect to Du-Kane's request for summary judgment
against Fortech as to the alleged conversion of the stockpiled
materials, the court stated, "I think that in my reading through
there, there are still some fact issues that aren't resolved.
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But in view of my [judgment] in favor of Du-Kane on the unjust
enrichment, I am not sure whether any further effort [on this
additional claim] would be necessary." "And I ask[] quite
candidly if the matter is going to proceed to trial, what
usefulness would be advanced in doing so when I have already
awarded [Du-Kane] something equal to what they claimed in
damages."
With respect to Du-Kane's motion for summary judgment as to
the two claims directed at Fortech's contractor, K-Five, and K-
Five's cross-motion, the court indicated:
"I am not aware of any case law, nor am I
going to take the position that someone who
was hired as a contractor could be liable for
conversion when the contractor was hired by
the person with right of possession.
In my view, the unauthorized control of
the property is not established by that fact
scenario. Also, I don't believe the evidence
indicates that K-Five received any unjust
enrichment as a result of this activity, so
consequently my ruling is K-Five's motion for
summary judgment is granted and the cross
motion for Du-Kane for summary judgment on
both counts will be denied."
Both parties to this appeal emphasize these remarks, but disagree
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on their meaning. According to appellant Du-Kane, the court held
an agent cannot be liable for conversion, as indicated by the
phrase, "nor am I going to take the position that someone who was
hired as a contractor could be liable for conversion." According
to appellee K-Five, however, the court was indicating the
contractor was not liable for conversion because its principal,
Fortech, was "the person with right of possession" to the land
and therefore to the materials stored there which K-Five
redistributed on the land at Fortech's behest. There was a
motion for reconsideration of the summary judgment order entered
against Du-Kane and for K-Five, but the record does not disclose
why the court denied the motion to reconsider. The record does
indicate, however, that Fortech's complaint is still pending and
that the District intends to recoup environmental cleanup costs
for the Lemont site and was allowed to intervene in the
litigation on February 25, 2004. On April 21, 2005, the court
entered a Rule 304(a) finding so that this appeal concerning
agent K-Five's liability could be taken. 155 Ill. 2d R. 304(a).
We review the court's summary judgment ruling de novo. Turner
Investors, 338 Ill. App. 3d at 681, 789 N.E.2d at 327.
As indicated above, Du-Kane's main argument is that the
court erroneously determined an agent who converts property at
his principal's direction cannot be held liable. Conversion is
an unauthorized assumption of the right to possession or
ownership of personal property. Jensen v. Chicago & Western
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Indiana R.R. Co., 94 Ill. App. 3d 915, 932, 419 N.E.2d 578, 593
(1981). To prove a claim of conversion, the plaintiff must show
(1) a right in the property, (2) a right to the immediate
possession of the property, which is absolute, unconditional, and
not dependent upon the performance of some act, (3) a deprivation
of the right by the unauthorized and wrongful assumption of
control, dominion, or ownership by the defendant, and (4) a
demand for possession of the property. Pavilon v. Kaferly, 204
Ill. App. 3d 235, 247, 561 N.E.2d 1245, 1253 (1990); Jensen, 94
Ill. App. 3d at 932, 419 N.E.2d at 592-93.
No Illinois court has specifically addressed an agent's
liability for committing the tort of conversion at a principal's
direction; however, it is a well-settled general proposition that
principals and agents are jointly and severally liable for
tortious conduct. Buckner v. Atlantic Plant Maintenance, Inc.,
182 Ill. 2d 12, 25-26, 694 N.E.2d 565, 571-572 (1998) (Freeman,
C.J., concurring in part and dissenting in part, joined by
Harrison, J.). Where the principal commands the agent to commit
a tort, the principal is liable based on the tort rule "'that one
causing and intending an act or result is as responsible as if he
had personally performed the act or produced the result.'"
Buckner, 182 Ill. 2d at 25, 694 N.E.2d at 572 (Freeman, C.J.,
concurring in part and dissenting in part, joined by Harrison,
J.), quoting Restatement (Second) of Agency _ 212, Comment a, at
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455 (1958), accord W. Seavey, Agency _ 82, at 137 (1964). "The
law concerning an agent's liability where the principal commands
the agent to commit a tort is equally straightforward." Buckner,
182 Ill. 2d at 25-26, 694 N.E.2d at 572 (Freeman, C.J.,
concurring in part and dissenting in part, joined by Harrison,
J.). "'The basic proposition concerning the agent's or servant's
tort liability is simple and readily stated: it is normally
unaffected by the fact that he is an agent or servant.'"
Buckner, 182 Ill. 2d at 26, 694 N.E.2d at 603 (Freeman, C.J.,
concurring in part and dissenting in part, joined by Harrison,
J.), quoting P. Mechem, Agency _ 343, at 232 (4th ed. 1952). The
agent's tort liability "'is not based upon the contractual
relationship existing between the principal and agent, but upon
the common-law obligation that every person must so act or use
that which he controls as not to injure another.'" Buckner, 182
Ill. 2d at 26, 694 N.E.2d 572 (Freeman, C.J., concurring in part
and dissenting in part, joined by Harrison, J.), quoting 3 Am.
Jur. 2d Agency _ 309, at 813-14 (1986). "'[W]hether he is acting
on his own behalf or for another, an agent who violates a duty
which he owes to a third person is answerable to the injured
party for the consequences.'" Buckner, 182 Ill. 2d at 26, 694
N.E.2d at 572 (Freeman, C.J., concurring in part and dissenting
in part, joined by Harrison, J.), quoting 3 Am. Jur. 2d Agency _
309, at 813-14. "'It is no excuse to an agent that his principal
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is also liable for a tort ***.'" Buckner, 182 Ill. 2d at 26, 694
N.E.2d at 572 (Freeman, C.J., concurring in part and dissenting
in part, joined by Harrison, J.),, quoting 3 Am. Jur. 2d Agency _
309, at 813-14. "'The principal and his agent are jointly and
severally liable for all of the damages sustained by the
plaintiff.'" Buckner, 182 Ill. 2d at 27, 694 N.E.2d at 572
(Freeman, C.J., concurring in part and dissenting in part, joined
by Harrison, J.), quoting 1 J. Lee & B. Lindahl, Modern Tort Law
_ 7.02, at 187 (rev. ed. 1988).
According to appellant Du-Kane, in a majority of
jurisdictions, any person who aids, abets, or assists in the
conversion of personal property is liable for all resulting
damages, even if the person is not directly benefitted by the
tortious act. Du-Kane urges this court to adopt the majority
view and find that even if K-Five did not directly benefit from
the use of Du-Kane's stockpiled material, K-Five can be held
liable for the loss it caused Du-Kane to suffer when it improved
the Lemont site with Du-Kane's stockpiles in accordance with
Fortech's instructions. We find this argument persuasive.
Du-Kane cites an illustrative case from Vermont, Murray v.
J&B International Trucks, Inc., 146 Vt. 458, 508 A.2d 1351
(1986), which involved a truck purchased for use in a log hauling
business. The financing company realized the truck buyer's
monthly installment payments had been under-calculated and
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instructed a Newport, Vermont, truck dealership that was
repairing the vehicle to keep it while the financing company
tried to negotiate a new payment plan. Murray, 146 Vt. at 462,
508 A.2d at 1353. The buyer was not in default and was entitled
to possession of the truck. Murray, 146 Vt. at 465, 508 A.2d at
1355. The Burlington, Vermont, truck salesman that negotiated
the original financing agreement got involved in the attempted
renegotiation. Murray, 146 Vt. at 462, 508 A.2d at 1353. The
buyer balked at the proposed changes and asked to rescind the
contract and to regain possession of equipment he attached to the
truck for his log hauling business. Murray, 146 Vt. at 462, 508
A.2d at 1353. Instead, the financing company and selling
dealership took the truck back to Burlington (Murray, 146 Vt. at
467, 508 A.2d at 1356) and sold it and the attached equipment to
a third party. Murray, 146 Vt. at 465, 508 A.2d at 1354. The
financing company, the Newport repairing dealership, and the
Burlington selling dealership were all found jointly and
severally liable for conversion of the truck and the log hauling
equipment. Murray, 146 Vt. at 463, 508 A.2d at 1354. On appeal
from the joint and several judgment, the selling dealership
characterized itself as a party that acted in good faith, without
intent to injure, for the benefit of the financing company and
not for itself. Murray, 146 Vt. at 466-67, 508 A.2d at 1356.
The Supreme Court of Vermont, however, cited the selling
dealership's stake in the financing arrangement and its active
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participation in the attempted renegotiation and subsequent
resale as reasons for affirming the finding of joint and several
liability. Murray, 146 Vt. at 466-67, 508 A.2d at 1356-57. Of
particular relevance here:
"Furthermore, even if we accept [the selling
dealership's] characterization of itself as
an [innocent] agent [of the financing
company] and not as a principal, this does
not make [the dealership] any less liable for
the tort of conversion.
An agent who wrongfully convert's
another's property, or who assists his
principal in so doing, is personally liable
for the conversion. [Citation.] This is
true even if the agent commits the act in
good faith, and without knowledge of the
owner's rights, and in obedience to his
principal's commands. [Citation.] The agent
need gain nothing from the transaction.
Schwartz v. Schartz, 82 Misc. 2d 51, 365
N.Y.S.2d 589, 592 (Sup.Ct. 1975)." Murray,
146 Vt. at 467, 508 A.2d at 1356.
One of the opinions the Vermont Supreme Court relied upon
was from New York, Schwartz, 82 Misc. 2d 51, 365 N.Y.S.2d 589.
In Schwartz, a mother and daughter opened a joint bank account by
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depositing a jointly-owned savings bond. Schwartz, 82 Misc. 2d
at 52, 365 N.Y.S.2d at 591. The joint account remained
relatively inactive for years, until the mother's health was
failing and she was ready to enter a nursing home. Schwartz, 82
Misc. 2d at 52, 365 N.Y.S.2d at 591. She told her son to close
the account and use the proceeds to pay for her nursing care.
Schwartz, 82 Misc.2d at 52, 365 N.Y.S.2d at 591. He did as he
was told. Schwartz, 82 Misc. 2d at 52, 365 N.Y.S.2d at 591. He
closed the joint account without his sister's knowledge and
applied all the funds to his mother's nursing care. Schwartz, 82
Misc. 2d at 52, 365 N.Y.S.2d at 591. Even though the son was
merely complying with his mother's instructions, did not
personally benefit from any of the transactions, and there was no
hint of inappropriate spending, undue influence, or fraud, the
daughter filed a civil suit and obtained a judgment against her
brother for conversion of her half of the joint bank account.
Schwartz, 82 Misc. 2d at 53-54, 365 N.Y.S.2d at 592-93. His
wife was also named as a defendant and suffered the same fate,
since her name was on the bank account used to pay the nursing
home's bills. Schwartz, 82 Misc. 2d at 53, 365 N.Y.S.2d at 592.
The appellate court determined:
"The fact that [the well-intentioned son and
his wife] did not use the moneys for
themselves is unavailing. An action in
conversion lies notwithstanding that the
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wrongdoer did not apply the property to his
own use [citation]. Thus, an agent is guilty
of conversion although he acts in good faith
for a principal who receives the benefit."
Schwartz, 82 Misc. 2d at 53, 365 N.Y.S.2d at
592.
There is also Continental Supply Co. v. White, 92 Mont. 254,
12 P.2d 569 (1932), which involved a nonproducing Montana oil
well and multiple claimants to 10-inch casing that had been
pulled from the well and piled at the site. All of the material
at the site was subject to a lien but the unsuccessful drillers
sold some of the used oil well casing to McClure. Continental
Supply, 92 Mont. at 257-58, 12 P.2d at 571. McClure told a
supply company to pick up the casing, sell it, pay off McClure's
bank debt, and give him any remaining balance. Continental
Supply, 92 Mont. at 269, 12 P.2d at 575. The supply company did
as McClure instructed and was sued by the lienholder for
conversion. Continental Supply, 92 Mont. at 269, 12 P.2d at 575.
After judgment was entered in the lienholder's favor, the supply
company took an appeal, arguing that it was shielded by its
status as an agent for McClure. Continental Supply, 92 Mont. at
269, 12 P.2d at 575. The court rejected this argument, stating,
"The fact that one acted as an agent for another in converting
the property of a third person is clearly no defense on the part
of the agent, even though he acted within the scope of his
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authority and was ignorant of his principal's want of authority."
Continental Supply, 92 Mont. at 270, 12 P.2d at 575-76.
Although Du-Kane characterizes these cases as the "majority"
view as to an agent's liability for conversion, Du-Kane does not
cite and we were unable to find any cases adopting a contrary
view. In addition, all of the secondary authority we would refer
to in the absence of relevant local or foreign case law also
plainly states these principles. See Restatement (Second) of
Agency _ 349, at 116 (1958) ("An agent who does acts which would
otherwise constitute trespass to or conversion of a chattel is
not relieved from liability by the fact that he acts on account
of his principal and reasonably, although mistakenly, believes
that the principal is entitled to possession"); 18 Am. Jur. 2d
Conversion _ 61, at 199 (2004) ("[A]n agent who takes the
property of another without consent, and delivers it to a
principal, is guilty of conversion and he or she may be held
liable although acting in ignorance of the true owner's title and
in perfect good faith"); 2A C.J.S. Agency _ 374, at 636 (2003)
("An agent *** is personally liable for the conversion, even
where the agent has committed the act in good faith, in ignorance
of the plaintiff's rights in the property, and in obedience to
the command of the principal"). Accord, Forbush v. San Diego
Fruit & Produce Co., 46 Idaho 231, 249, 266 P. 659, 664 (1928)
(with regard to 121,000 pounds of potatoes hauled from ranch to
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warehouse, court collected cases and stated "[t]he general rule
is that an agent, however innocent, who wrongfully interferes
with the property of another is liable in conversion").
Thus, if the circuit court's summary judgment ruling in
favor of Fortech's contractor K-Five was based on the conclusion
that "someone who was hired as a contractor could [not] be liable
for conversion," the ruling was erroneous. This conclusion is
contrary to Illinois authority cited generally above regarding an
agent's liability in tort as well as the foreign and persuasive
authority cited above specific to an agent's liability for the
tort of conversion.
Moreover, K-Five's argument to the contrary is not supported
by the record. K-Five would have us conclude that none of the
agency law is relevant because its principal, Fortech, had the
right to possess the Lemont site as of May 22, 1997, and
therefore the authority to relocate and make use of Du-Kane's
stockpiled material when Fortech instructed K-Five to begin
readying the site for Fortech's use as of May 23, 1997. K-Five
is relying on the notice to quit and demand for possession which
Fortech's predecessor, Reclamation, issued to some of the
subleasees on January 31, 1994, and the circuit court's order for
possession entered on May 22, 1997, in 96-M1-739824. Nothing in
the notice to quit and demand for possession entitled Reclamation
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or its successor Fortech to ever forcibly take possession of the
Lemont property. "The common law permitted an individual who was
rightfully entitled to enter upon land to do so with force and
arms and retain possession by force." Heritage Pullman Bank v.
American National Bank & Trust Co. of Chicago, 164 Ill. App. 3d
680, 686, 518 N.E.2d 231, 236 (1987). However, the Forcible
Entry and Detainer Act put an end to the practice of self-help
and provides the sole means for settling a dispute over
possession rights to real property. 735 ILCS 5/9-101 et seq.
(West 1994); Heritage Pullman Bank, 164 Ill. App. 3d at 686, 518
N.E.2d at 236; Yale Tavern, Inc. v. Cosmopolitan National Bank,
259 Ill. App. 3d 965, 971, 632 N.E.2d 80, 85 (1994). "The
statute prohibits any actual or constructive self-help through
force, including changing locks or locking someone out of his
land." Yale Tavern, 259 Ill. App. 3d at 971, 632 N.E.2d at 85.
Therefore, while the notice to quit and demand for possession may
have been a prerequisite to the filing of the eviction suit and
was Fortech's basis for claiming superior entitlement to the real
property, the document did not permit Fortech to enter and regain
possession of the property through self-help. In addition,
nothing in the order for possession entered on May 22, 1997,
entitled Fortech to possess the real property as early as May 23,
1997. In fact, the order expressly stayed enforcement of the
judgment until June 21, 1997. A stay of enforcement suspends the
efficacy of a judgment and temporarily precludes affirmative
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action to implement the court's ruling. See e.g., Gregory v.
First National Bank & Trust Co., 84 Ill. App. 3d 957, 406 N.E.2d
583 (1980) (divorce judgment eliminated wife's management rights
in trust fund, but stay of divorce judgment effectively prevented
husband from managing trust fund without wife); Black's Law
Dictionary 1425 (7th ed. 2004) (indicating a stay "suspend[s] all
or part of a judicial proceeding or a judgment resulting from
that proceeding"). Therefore, the court order entitled Du-Kane
to retain undisturbed possession of the real property and to
continue storing its materials there until at least June 21,
1997. Any entry to the Lemont parcel prior to that date by
Fortech or Fortech's agent K-Five in reliance on the court order
and without the consent of Du-Kane or R.W. Dunteman was
unjustified. Du-Kane's rights did not end upon issuance of the
notice to quit and demand for possession, nor upon issuance of
the order for possession. Du-Kane's possessory rights persisted
pursuant to the May 22, 1997, court order until at least June 21,
1997. In addition, although the record on appeal does not
disclose all the circumstances regarding Fortech's subsequent
"emergency motion to compel defendants to remove piles of
debris," the circuit court order entered on July 8, 1997,
expressly states that "defendants shall have 10 days or until
July 18, 1997 to remove the remaining debris." We read this
statement as indication that the court extended, at least in
part, the stay of the execution of the order for possession
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entered on May 22, 1997.
Because we have rejected K-Five's contention that principal
Fortech had the right to possess the Lemont site as of May 23,
1997, we also reject K-Five's related contention that Fortech
justifiably directed it to enter the site when it did because
Fortech was "obligated by law to remove the Materials in order to
mitigate its damages." K-Five relies on MXL Industries, which
states that a landlord is required to "undertake reasonable
efforts to relet the premises following a defaulting tenant's
departure from the premises." MXL Industries, Inc. v. Mulder,
252 Ill. App. 3d 18, 31, 623 N.E.2d 369, 378 (1993). However,
Du-Kane had not "depart[ed] from the premises" when K-Five began
disturbing the stockpiled material and Du-Kane was under no legal
obligation to depart until at least June 21, 1997.
Similarly, we are not persuaded by K-Five's related
contention that Fortech was justified in entering the site as
early as May 23, 1997, because Du-Kane appeared to have abandoned
the "worthless" materials at issue. K-Five relies on Michael for
the proposition that "property is abandoned when the owner,
intending to relinquish all rights to the property, leaves it
free to be appropriated by any other person" (Michael v. First
Chicago Corp., 139 Ill. App. 3d 374, 382, 487 N.E.2d 403, 409
(1985)), and also cites Coleman for the proposition that intent
may be inferred from conduct and circumstances surrounding the
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incident (People v. Coleman, 311 Ill. App. 3d 467, 473, 724
N.E.2d 967, 972 (2000) (indicating the intent element of first
degree murder "may be inferred from the circumstances surrounding
the incident, defendant's conduct, and the nature and severity of
the victim's injuries")). Here, however, since Du-Kane had not
left the premises and its stockpiles as of May 23, 1997, there
are no circumstances or conduct from which to infer that as of
that date, Du-Kane "[left the stockpiles] free to be appropriated
by any other person." Michael, 139 Ill. App. 3d at 382, 487
N.E.2d at 409. Whether the materials were "worthless" when they
were taken is an unresolved question of fact, but lack of value
would not justify K-Five's entry to the land and use of materials
that the owner could legally store there until at least June 21,
1997.
K-Five also unpersuasively asserts that the present case is
"virtually indistinguishable" from Row v. Home Savings Bank, 306
Mass. 522, 29 N.E.2d 552 (1940). In Row, however, the
plaintiff's belongings were discarded after she no longer had a
right to occupy the leased premises and was long overdue in
collecting her possessions. Row, 306 Mass. at 524, 29 N.E.2d at
553. In June 1932, she stopped living in the rented room at
issue, moved out most of her belongings, and her landlord closed
the building and left it unoccupied. Row, 306 Mass. at 523, 29
N.E.2d at 552. Her landlord told her she could use the room for
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the summer as a writing studio. Row, 306 Mass. at 523, 29 N.E.2d
at 552. At the end of the summer of 1932, she left, without
taking two trunks and a suitcase. Row, 306 Mass. at 523, 29
N.E.2d at 552. The plaintiff herself described the trunks as
"'old and useful only as repositories,'" and she left one trunk
unlocked and the other open. Row, 306 Mass. at 523, 29 N.E.2d at
552. The contents of the luggage included photographs, letters,
autographs, small antiques, books, china, silver spoons, and
silver plated ware. Row, 306 Mass. at 523, 29 N.E.2d at 552-23.
In October 1932, her landlord moved out its office furniture and
turned off the water service. Row, 306 Mass. at 523, 29 N.E.2d
at 552. In May 1933, her landlord told her it was abandoning the
building and "'everything was going.'" Row, 306 Mass. at 524, 29
N.E.2d at 553. The property was in foreclosure. Row, 306 Mass.
at 523-24, 29 N.E. 2d at 552-53. In June 1933, her landlord
moved out the last of its belongings. Row, 306 Mass. at 524, 29
N.E.2d at 553. On July 1, 1933, which was more than a year after
she used the room as a writing studio, she visited the building,
but still did not collect her old luggage. Row, 306 Mass. at 524,
29 N.E.2d at 553. After July 13, 1933, the mortgage lender
changed the locks, cleaned the building, and threw out the
remaining "debris." Row, 306 Mass. at 524, 29 N.E.2d at 553. On
August 1, 1933, the plaintiff returned to the building and
discovered the new state of affairs. Row, 306 Mass. at 524, 29
N.E.2d at 553. The appellate court rejected her claim for
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conversion because the plaintiff "had no right to continue to
keep her property in the building" and the mortgage lender's
conduct under the circumstances had been "reasonable." Row, 306
Mass. at 526, 29 N.E.2d at 554. The court emphasized that the
building had been vacant for a long time, that it was a "common
experience" for a foreclosing mortgage lender to find "broken,
dilapidated or otherwise worthless furniture, tools or equipment,
apparently abandoned by the former occupant," that the property
at issue was "reasonably deemed *** worthless" and was unworthy
of storage, and that there was little the foreclosing lender
could do under the circumstances but discard the property. Row,
306 Mass. at 526, 29 N.E.2d at 554. The only similarity Row has
with the present case is the lengthy prelude to a judicial
determination of property rights. Du-Kane still had the right to
possess the Lemont parcel and DuKane's property was used to
improve the incoming tenant's situation instead of being
"discarded." K-Five's citation to Row does not persuade us that
"there was nothing else that Fortech could have done [under the
circumstances] but have K-Five move the Materials."
In short, regardless of whether we accept Du-Kane or K-
Five's characterization of the court's summary judgment ruling on
the conversion count (whether it was based on K-Five's status as
a mere agent or based on K-Five's status as an agent of the party
with authority to posses the property), it was erroneous.
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Moreover, we are not persuaded that a "demand" for the
return of the materials was essential to Du-Kane's claim of
conversion. Although "demand" is often cited as the fourth
necessary element of a conversion action, demand is unnecessary
where "another independent action of conversion is established."
Pavilon, 204 Ill. App. 3d at 248, 561 N.E.2d at 1253; Jensen, 94
Ill. App. 3d at 933, 419 N.E.2d at 593. For instance, in
Pavilon, the defendant's sale of the office desk at issue to a
third person constituted "such an independent act." Pavilon, 204
Ill. App. 3d at 248, 561 N.E.2d at 1253. Similarly, in Jensen,
the defendant's sale of antique steam locomotives and related
railcar parts for scrap was deemed an independent act. Jensen,
94 Ill. 2d at 933, 419 N.E.2d at 593. The record on appeal
indicates that a similar, sufficiently independent act occurred
in this case. The deposition transcripts tendered to the circuit
court show that K-Five did not merely relocate the piled material
to another section of the land or to another site. Instead, K-
Five spread the material around the Lemont site and incorporated
it into a road, a parking lot, and a broad, windblocking berm.
The material that was incorporated into the parking lot and the
road was compacted to support the weight of vehicles, and the
material that was incorporated into the berm was covered over
with black dirt so that it could be landscaped. The raw road
construction material that Du-Kane piled on the Lemont property
ceased to exist as early as May 23, 1997. Under the
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circumstances, a demand was unnecessary for Du-Kane's conversion
suit. We also find that a "demand" was unnecessary in this
instance because K-Five's entry to the land and use of the
materials was contrary to the court's order for possession of
premises. We are not persuaded that Du-Kane was required to
demand that Fortech and K-Five comply with the express terms of
the court's order. Whether the material had the valuable
composition that Du-Kane has claimed, or was worthless waste that
K-Five has contended, is a unresolved question of fact.
Accordingly, we vacate the circuit court's entry of summary
judgment in favor of K-Five and against Du-Kane as to Du-Kane's
claim of conversion, and we remand the cause with directions to
reconsider the claim in light of our findings, and, if necessary,
to conduct further proceedings to resolve any questions of fact
regarding the claim.
Appellant Du-Kane's last argument is that it submitted
undisputed evidence of K-Five's unjust enrichment. "A plaintiff
may recover under the theory of unjust enrichment if the
defendant unjustly retained a benefit to plaintiff's detriment,
and '"defendant's retention of the benefit violates the
fundamental principles of justice, equity and good conscience."'"
Stathis v. Geldermann, Inc., 295 Ill. App. 3d 844, 864, 692
N.E.2d 798 (1998), quoting Alliance Acceptance Co. v. Yale
Insurance Agency, Inc., 271 Ill. App. 3d 483, 492, 648 N.E.2d 971
(1995), quoting HPI Health Care Services, Inc. v. Mt. Vernon
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Hospital, Inc., 131 Ill. 2d 145, 160, 545 N.E.2d 672 (1989).
Du-Kane cites but one case, Stathis, for the proposition
that K-Five's intent is irrelevant to this additional claim
because "[a] cause of action based upon unjust enrichment does
not require fault or illegality on the part of [the] defendants;
the essence of the cause of action is that one party is enriched
and it would be unjust for that party to retain the enrichment."
Stathis, 295 Ill. App. 3d at 864, 92 N.E.2d at 822-83. Du-Kane
fails to explain how Stathis is factually similar to the present
case and, thus, why its analysis and holding are applicable here.
In fact, Stathis did not engage in any relevant analysis --
immediately after stating the principle Du-Kane is relying upon,
the court indicated the parties' rights were governed by an
express contract, and therefore, the quasi- or implied contract
doctrine of unjust enrichment "ha[d] no application" to their
dispute. Stathis, 295 Ill. App. 3d at 864, 92 N.E.2d at 823.
Du-Kane's failure to cite relevant authority is a violation of
Rule 341(e)(7) and waives consideration of its unjust enrichment
claim. 155 Ill. 2d R 341(e)(7); Washington v. Caseyville Health
Care Ass'n, 284 Ill. App. 3d 97, 102, 672 N.E.2d 34, 37 (1996).
Accordingly, we affirm the entry of summary judgment in favor of
K-Five and against Du-Kane as to Du-Kane's claim of unjust
enrichment.
Affirmed in part and vacated in part; remanded with
directions.
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GORDON and BURKE, JJ., concur.
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