Proving Conversion in Illinois
Illinois courts have defined the tort of “conversion” as any unauthorized act that deprives a person of his or her property permanently or for an indefinite time. Illinois Jurisprudence, Personal Injury and Torts § 10:01. The essence of a cause of action for conversion is the wrongful deprivation of one who has a right to the immediate possession of the object unlawfully held, or the wrongful deprivation of property from the person entitled to possession. Id. The Illinois Supreme Court held to establish a cause of action for conversion, a plaintiff must prove by a preponderance of the evidence that: (1) the plaintiff has a right to the property; (2) the plaintiff has an absolute and unconditional right to the immediate possession of the property; (3) the plaintiff made a demand for possession; and (4) the defendant wrongfully and without authorization assumed control, dominion, or ownership over the property. Cirrincione v. Johnson, 184 Ill.2d 109, 114 (1998).
The plaintiff must show a right to the property, and an absolute and unconditional right to immediate possession of the property; thus, plaintiff must prove his immediate right of possession as against the defendant. Illinois Jurisprudence, Personal Injury and Torts § 10:08. The third element of a cause of action for conversion requires the plaintiff to make a demand for possession of the property. Cirrincione v. Johnson, 184 Ill.2d 109, 114 (1998). However, Illinois courts are split on whether demand for possession is a requirement to prove conversion. Illinois Jurisprudence, Personal Injury and Torts § 10:09. Illinois courts have held that demand is necessary in all cases in which the defendant is in possession of the property. Id. On the other hand, where some other independent act of conversion can be proven, Illinois courts have held that there is no necessity for a demand by the person claiming ownership or right to possession in order to prove a cause of action for conversion. Id. The First District Illinois Appellate Court stated, “Although demand is often cited as an element of a conversion action, demand is unnecessary where another independent action of conversion is established.” Fortech, L.L.C. v. R.W. Dunteman Co., Inc., 366 Ill.App.3d 804 (1st Dist. 2006). In addition, to satisfy the fourth element of conversion, Illinois courts require that the plaintiff proves that the defendant exercised control over the chattel in a manner inconsistent with the plaintiff's right of possession. Illinois Jurisprudence, Personal Injury and Torts § 10:07. Moreover, there can be no wrongful assertion of dominion or control where the property is voluntarily transferred to the defendant by the plaintiff, even if the transfer was done by mistake. Illinois Jurisprudence, Personal Injury and Torts § 10:10.
The Illinois Supreme Court held that “the subject of conversion is required to be an identifiable object of property of which the plaintiff was wrongfully deprived.” The Film and Tape Works, Inc. v. Junetwenty Films, Inc., 368 Ill.App.3d 462, (1st Dist. 2006); (see In re Thebus, 108 Ill.2d 255, 260 (1985)). However, intangible property rights can be the subject of conversion if they are merged into a tangible document over which the alleged defendant exercised dominion or ownership. The Film and Tape Works, Inc. v. Junetwenty Films, Inc., 368 Ill.App.3d 462, (1st Dist. 2006). Illinois courts have recognized a cause of action for conversion of commercial paper, such as a check, on the theory that the intangible property right was merged into a specific document. Illinois Jurisprudence, Personal Injury and Torts § 10:13. Other types of intangible property that Illinois courts have recognized as merging into a specific document to satisfy the property requirement for conversion are valuable papers, or evidences of title to real or personal property for checks, promissory notes, bank bills, bonds, bills of exchange, drafts, certificates of stock in incorporated companies, securities of any kind, books of account, vouchers, and the like. Id.
Moreover, money may be the subject of conversion, but it must be capable of being described as a specific chattel, although it is not necessary for purposes of identification that money should be specifically earmarked. The Film and Tape Works, Inc. v. Junetwenty Films, Inc., 368 Ill.App.3d 462, (1st Dist. 2006); (see In re Thebus, 108 Ill.2d 255, 260 (1985)); and Illinois Jurisprudence, Personal Injury and Torts § 10:12. Money can be the subject of a claim for conversion provided that it can be described, identified or segregated, and an obligation to treat it in a specific manner is established. Illinois Jurisprudence, Personal Injury and Torts § 10:12. The general rule is that conversion will lie when the plaintiff proves that the money claimed, or its equivalent, at all times belonged to plaintiff and that the defendant converted it to his or her own use. Id. A plaintiff must generally show that he had a right to a specific fund or specific money in coin or bills. Id. Where money withheld to fulfill a debt is specific and identifiable, a conversion claim based on a debt is actionable. Id. However, conversion will not lie for money represented by a general debt or obligation. Id.
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