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. 

DUNTEMAN, and PAUL J. DUNTEMAN, 

Defendants 

(Du-Kane Asphalt Company, Inc., 

Counterplaintiff/Third-Party 

Plaintiff/Appellant; 

K-Five Construction Company, 

Third-Party Defendant/Appellee; 

Donald West, 

Third-Party Defendant). 

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Appeal from 

the Circuit Court 

of Cook County 

 

94 M1 704556 

Honorable 

Ronald F. Bartkowicz, 

 Judge Presiding 

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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2 

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 
1-05-1526 

3 

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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4 

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 
1-05-1526 

5 

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 
1-05-1526 

6 

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. 
1-05-1526 

7 

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 KFive'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 
1-05-1526 

8 

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 
1-05-1526 

9 

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 
1-05-1526 

10 

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 
1-05-1526 

11 

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 
1-05-1526 

12 

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 
1-05-1526 

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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 
1-05-1526 

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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 
1-05-1526 

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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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18 

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 
1-05-1526 

20 

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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21 

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 
1-05-1526 

22 

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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23 

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 KFive'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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24 

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, KFive 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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25 

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 
1-05-1526 

26 

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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27 

GORDON and BURKE, JJ., concur.