dissenting:
I respectfully dissent from the decision of the majority affirming the order of replevin granted to plaintiff. Replevin is a remedy governed solely by statute and its requirements must be strictly followed. (Jim’s Furniture Mart, Inc. v. Harris (1976), 42 Ill. App. 3d 488, 490, 356 N.E.2d 175.) In a replevin action, plaintiff has the burden of proof of ownership and the plaintiff must prevail on the strength of his or her own title or right to immediate possession. (Huber Pontiac, Inc. v. Wells (1978), 59 Ill. App. 3d 14, 17, 375 N.E.2d 149.) In this fact situation the only basis upon which plaintiff would be entitled to possession of these negatives would be as their owner. Plaintiff has failed to prove she is the owner of the negatives in dispute.
It is plaintiff's contention that the oral agreement entered into between the parties included the sale of negatives. The record, however, is devoid of any evidence to support such a contention. Rather, the evidence shows only that plaintiff and defendant entered into an agreement whereby defendant was to be paid a specific amount of money to take pictures at plaintiff’s party. In furtherance of this agreement, defendant incurred numerous expenses including the cost of film, rental of a flash and cab fare. Defendant testified that she made it clear in her initial conversation with plaintiff that she would be the owner of the negatives because at a future date she might want to exhibit prints of the photographs taken at the party. Significantly, this testimony is undisputed. Plaintiff does not contradict defendant’s testimony, but states she simply does not remember that part of the conversation. Further, plaintiff fails to even allege that she in any way indicated at the time the agreement was entered into that she would be entitled to the negatives.
Following the party, defendant prepared a proof presentation so that plaintiff could determine which prints she wanted to purchase from defendant. Plaintiff admitted that she was told by defendant that she could keep the proof presentation if she purchased $500 worth of prints. It seems clear that at this point both parties understood that defendant owned the negatives. If plaintiff believed she was entitled to ownership or possession of the negatives, she should have made a demand for them immediately after they were developed and then had the negatives made into prints on her own. Instead, upon viewing the proof presentation, she entered into negotiations with defendant for the price of the prints. Plaintiff’s husband even ordered two prints from defendant. Only after deciding that the price of the prints was more than she wanted to spend did plaintiff claim ownership of the negatives.
Moreover, the record does not support the existence of an employer-employee relationship between the parties. The undisputed facts fail to establish that plaintiff directed or supervised defendant’s photography or retained the right to do so. Defendant testified that other than asking her to take a picture of certain people, plaintiff did not accompany or direct her in the picture taking. Defendant additionally testified that she used her own judgment in taking the pictures. Plaintiff did not tell defendant where to have the prints developed; the decision was left up to defendant. Defendant’s status as an independent professional, as opposed to an employee, is further borne out by the financial arrangement in this case. Defendant spent her own money for film and the rental of a flash. She paid her own cab fare to and from the party and, after plaintiff’s husband ordered two prints, defendant paid cab fare to the photo lab and paid the deposit on the prints.
In my opinion, the plaintiff has failed to establish that she has title or right to immediate possession of the negatives in dispute. Consequently, the extraordinary remedy of replevin should not be available to plaintiff, and I would award to defendant attorney fees and costs wrongfully incurred in defending plaintiff’s claim.