Franchini v. Marchio

2021 IL App (3d) 200021-U

• Court: Appellate Court of Illinois
• Decided: February 17, 2021
• Docket: 3-20-0021
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2021 IL App (3d) 200021-U

Order filed February 17, 2021 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

FELIPE J. FRANCHINI, ) Appeal from the Circuit Court ) of the 12th Judicial Circuit, Plaintiff-Appellant, ) Will County, Illinois. ) v. ) ) Appeal No. 3-20-0021 ANTHONY MARCHIO, ALLIANCE FENCE ) Circuit No. 18-AR-648 CORPORATION and K.M.S. UNITED ) CORPORATION, ) ) Honorable Susan T. O’Leary, Defendants-Appellees. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE SCHMIDT delivered the judgment of the court. Justices Lytton and O’Brien concurred in the judgment.

ORDER

¶1 Held: The trial court did not err in finding for defendant on plaintiff’s claims of conversion and unjust enrichment.

¶2 Plaintiff, Felipe J. Franchini, filed a claim for conversion and unjust enrichment against

defendant, Anthony Marchio, and his business interests relating to items left on a commercial

property after the execution of a real estate contract. The trial court found in favor of Marchio. For

the reasons that follow, we affirm.

¶3 I. BACKGROUND ¶4 In May 2013, Franchini sold a piece of commercial property to Marchio’s business entity

“K.M.S. United Corp.” The property is a three-acre parcel consisting of a residential home, as well

as a large garage and shed. Franchini stored structural steel and what the parties refer to throughout

the proceedings as “cantilevers” on the property. The cantilevers are essentially shelving units or

racks similar to those used in home improvement stores and lumber yards to store various

equipment and supplies. For simplicity, we will refer to both the cantilevers and structural steel

simply as steel. Franchini did not remove the steel prior to the sale of the property. The sales

contract for the property contained a provision wherein Franchini would retain possession of the

property for three months “rent free” after the sale to remove a large amount of personal property

he had accumulated.

¶5 In July 2018, Franchini filed a two-count complaint claiming conversion and unjust

enrichment. He alleged that after signing the contract to sell the property but before the closing,

he and Marchio entered into an agreement where Marchio would purchase the steel for $12,000.

Based on this, Franchini left the steel behind when he vacated the property. Thereafter, Marchio

took the steel “with the intent to permanently deprive” Franchini of the same without paying him

the $12,000.

¶6 Marchio answered the complaint, denying that he and Franchini ever discussed the sale of

the steel for $12,000. He further denied that the alleged agreement served as the basis for Franchini

leaving the materials behind or that he was intentionally, permanently denying Franchini of their

use. Marchio then filed a motion to dismiss the unjust enrichment claim. 735 ILCS 2-619 (West

2018). Specifically, the motion to dismiss laid out that Franchini had alleged an express contract

for the sale of the steel existed and unjust enrichment could only be pursued in the absence of an

express contract.

-2- ¶7 Following the hearing on the motion to dismiss, Franchini filed an amended complaint.

The amended complaint alleged that at the closing, Franchini and Marchio discussed allowing

Franchini to keep the steel on the property until he could find a suitable storage space. This took

an extended amount of time; in the interim, Marchio agreed to purchase the material for $12,000.

In August 2014, Franchini sent a text message to Marchio requesting payment for the items.

Marchio declined to make payment. The amended complaint also claims that other items with a

cumulative value of $2500 were left at the property.

¶8 Marchio filed a counterclaim against Franchini based in quantum meruit. Marchio alleged

that Franchini failed to remove numerous items from the property. He was then forced to store the

items and “clean up” the property resulting in costs of $10,000.

¶9 The matter eventually proceeded to a bench trial. Both Franchini and Marchio testified.

¶ 10 Franchini testified as follows. He sold the property to Marchio’s business K.M.S. United

Corporation for $300,000 “as is.” At the closing, he and Marchio entered into an oral agreement

that Franchini would have until the end of the summer of 2014 to remove the steel. A few months

after the closing, there was an oral agreement that Marchio would purchase the steel for $12,000.

When Franchini texted Marchio for payment, Marchio refused to pay.

¶ 11 Counsel for Franchini submitted into evidence a collection of text messages between

Franchini and Marchio from 2014. Franchini admitted that the messages submitted into evidence

did not constitute the entirety of messages between he and Marchio. The messages depicted

conversations between the parties about access to the property due to Marchio putting up fencing

and Franchini’s need to access the property to collect his belongings. On August 22, 2014,

Franchini messaged Marchio stating, “When can I pick up the tub, you can have a little time to

think about the rack, most of the material left was steel and useful, you never responded to my

-3- messages to allow me access to that stuff, I had a place rented for.” The message abruptly cuts off.

The next message in the record bears no date but was presented at trial as if it were in succession

to the above. Marchio stated, “It’s cost me 12,000 dollars to clean all that up, the [V]illage of

Rockdale was going to fine us. [P]lus the dumpster [was] another 2000 dollars.” Franchini replied,

“All you had to do was call me, or [message] me[,] I had a place, and trucks lined up to move my

stuff.” The final message from Marchio stated, “I did[,] you never replyed [sic].” Absent from the

collection of messages are any communications that explicitly show Marchio agreed to buy the

steel for $12,000. Franchini stated that in a message, Marchio agreed to buy the steel but admitted

that message was one that was missing.

¶ 12 Franchini also stated that Marchio had locked him out of the property. However, under

questioning by opposing counsel, Franchini also stated that all he had to do to get access to the

property was to contact Marchio and he would let Franchini in.

¶ 13 Also submitted into evidence were satellite and ground level images of the property

showing that the steel had been moved and erected into racks.

¶ 14 Marchio took the stand next, testifying as follows. After the closing, Franchini took the

items that he wanted from the property and abandoned the rest. He never agreed to buy the steel

for $12,000, although he was interested in it and had discussed buying it. Marchio told Franchini

that he would not pay $12,000 for the steel because “it was not worth it.” Marchio also told

Franchini numerous times that he could pick up the steel whenever he wanted, including at a

deposition prior to trial and again at trial. Marchio did admit to erecting the steel into racks on his

property. He had to clean up the property because of his agreement with the Village of Rockdale

to annex. Franchini never made a demand for the steel. Marchio never objected to Franchini

obtaining access to remove items from the property and Marchio would come unlock the property

-4- for Franchini. Marchio did not have contact with Franchini after August 2014 until the filing of

this suit.

¶ 15 The trial court entered an order finding in favor of Marchio on Franchini’s claims but

denied the counterclaim. The court stated that after “[w]eighing all of the evidence presented at

trial and the credibility of the witnesses, [Franchini] failed to meet his burden of proof that

[Marchio] committed conversion or that they were unjustly enriched as alleged in Counts I and II

of the Amended Complaint.” Specifically, the court found that Franchini had failed to make a

demand for the return of his property and that inaction was fatal to his conversion claim. The court

also found that Franchini had failed to establish an agreement for the purchase of the steel, even

though Franchini claimed a message he failed to produce evidenced the agreement. The court

opined that,

“No text message or document on any date was admitted that demonstrated

that the parties entered into an agreement for the sale of steel, that a demand

for payment was made[,] or that [Franchini] demanded [Marchio] allow him

to remove the steel from the premises. *** If the text messages had been

favorable to his case, he would have produced them.”

¶ 16 Franchini appeals.

¶ 17 II. ANALYSIS

¶ 18 Franchini argues the trial court misapplied the law by requiring that he prove that he made

a demand for the steel before filing his conversion claim. He also argues the court erred in finding

a contract for the sale of the steel did not exist.

¶ 19 Marchio asserts that the trial court properly found in his favor. He argues that it is well

established that in order to succeed on a claim for conversion, one must plead and prove a demand

-5- for the return of the property in question and a refusal by the defendant to do so. Marchio goes on

to assert that Franchini’s arguments regarding the existence of a contract for the sale of the steel

are forfeit due to a failure to raise them below.

¶ 20 A. Conversion

¶ 21 In a civil case, a plaintiff must plead and prove the following elements to prevail on a

conversion claim, (1) a right to the property; (2) an absolute and unconditional right to the

immediate possession of the property; (3) a demand for possession; and (4) the defendant

wrongfully and without authorization assumed control, dominion, or ownership over the property.

See In re Karavidas, 2013 IL 115767, ¶ 61 (quoting Loman v. Freeman, 229 Ill. 2d 104, 127

(2008), quoting Cirrincione v. Johnson, 184 Ill. 2d 109, 114 (1998)).

¶ 22 The great weight of jurisprudence in Illinois predicates the requirement of a demand as an

element of conversion upon the possession of the property in question by the defendant. Put

another way, where the defendant has sold or otherwise disposed of the property in question,

thereby no longer having possession, a demand would be futile and ergo not required. See Monroe

County Water Cooperative. v. City of Waterloo, 107 Ill. App. 3d 477, 481 (1982). “[T]he rationale

being that a demand for possession would be fruitless where the defendant no longer possesses the

chattel and the law will not require the doing of a useless act.” Id. (citing National Bond &

Investment Co. v. Zakos, 230 Ill. App. 608, 612 (1923)).

¶ 23 Here, Franchini claims that by fencing off the commercial property and “incorporating”

the steel into the property, a demand for the return of the material would have been futile. We

disagree. Marchio maintained possession over the property in question. Further, by erecting the

steel into racks he did not incorporate the steel into the property in a way that would render the

request for its return futile. Moreover, it is also apparent from the testimony that Marchio did not

-6- deny Franchini access to the property to retrieve his belongings. Quite the opposite, Marchio at his

deposition and at trial, stated Frnachini could retrieve the steel whenever he wanted.

¶ 24 Franchini was required to demand the return of his property before proceeding with a claim

for conversion. None of the actions by Marchio constitute an independent act of conversion. Under

the facts of this case, given the nature of the property in question, and its use by Marchio, we find

a demand and refusal necessary.

¶ 25 Franchini cites to numerous cases for the proposition that he did not need to make a demand

for the return of the steel after Marchio committed an independent act of conversion. See, e.g.,

Jensen v. Chicago & Western Indiana R.R. Co., 94 Ill. App. 3d 915 (1981); Pavilion v. Kaferly,

204 Ill. App. 3d 235 (1990). These cases are distinguishable, and none support the contention that

by fencing off the property and erecting the steel into racks, Marchio committed an independent

act of conversion.

¶ 26 In Jensen, the defendant sold the property in question. The appellate court found that the

sale of the property by the defendant represented an independent act of conversion. Jensen, 94 Ill.

App. 3d at 933. In addition, the court found it would have been futile to ask for the return of

property the defendant did not have. Id.

¶ 27 In Pavilion, the court found that when the plaintiff asked to remove the property from the

defendant’s premises, this was sufficient to constitute a demand. Pavilon, 204 Ill. App. 3d at 248.

Further, when the defendant later sold the property, this constituted an independent act of

conversion. Id.

¶ 28 We could go on summarizing the cases cited by Franchini, but it suffices to say that they

are inapplicable to the current matter, as Marchio is still in possession of the steel.

-7- ¶ 29 Accordingly, the lower court did not err in finding that Franchini’s failure to make a

demand was fatal to his conversion claim.

¶ 30 B. Existence of a Contract

¶ 31 Next, Franchini argues that various sections of the Illinois Uniform Commercial Code

support his contention that the lower court erred in finding that a contract did not exist between

the parties. See 810 ILCS 5/2-204, 2-202, 2-305 (West 2018). Franchini failed to raise these

arguments in the trial court. Thus, they are forfeit. See Hebert v. Cunningham, 2018 IL App (1st)

172135, ¶ 37.

¶ 32 With these arguments forfeited, Franchini provides no other basis to overturn the lower

court’s decision on this point. Illinois Supreme Court Rule 341(h)(7) (eff. July 1, 2008) has led to

the oft-cited axiom that “[t]he appellate court is not a repository into which an appellant may foist

the burden of argument and research.” See, e.g., Ramos v. Kewanee Hospital, 2013 IL App (3d)

120001, ¶ 37. “ ‘Points not argued are [forfeited]’ and failure to properly develop an argument and

support it with citation to relevant authority results in forfeiture of that argument.” Id. (quoting Ill.

S. Ct. R. 341(h)(7) (eff. July 1, 2008)). We decline the opportunity to shoulder Franchini’s burden

of argument or search the record for a basis to overturn the trial court.

¶ 33 Accordingly, Franchini has forfeited his challenge to the lower court’s finding that a

contract for the sale of the steel did not exist.

¶ 34 III. CONCLUSION

¶ 35 For the foregoing reasons, we affirm the judgment of the circuit court of Will County.

¶ 36 Affirmed.

-8-