Fortech v. R.W. Dunteman Company

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

9
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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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