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                                    Appellate Court                         Date: 2019.04.16
                                                                            09:50:18 -05'00'



             Wei Quan v. Arcotech Uniexpat, Inc., 2018 IL App (1st) 180227



Appellate Court        WEI QUAN, Plaintiff-Appellant, v. ARCOTECH UNIEXPAT, INC.,
Caption                an Involuntarily Dissolved Illinois Corporation, Merged With
                       Arcotech Uniexpat, LLC, d/b/a InternshipDesk, and CRAIG PIATTI,
                       Defendants-Appellees.



District & No.         First District, First Division
                       Docket No. 1-18-0227



Filed                  December 10, 2018



Decision Under         Appeal from the Circuit Court of Cook County, No. 16-L-8545; the
Review                 Hon. Diane M. Shelly, Judge, presiding.



Judgment               Reversed and remanded with directions.


Counsel on             Rodin Legal, LLC, of Chicago (Joshua G. Rodin, of counsel), for
Appeal                 appellant.

                       Maksimovich & Associates, of Lyons (James M. Joyce, of counsel),
                       for appellees.



Panel                  JUSTICE PIERCE delivered the judgment of the court, with opinion.
                       Justices Griffin and Walker concurred in the judgment and opinion.
                                              OPINION

¶1       Plaintiff Wei Quan sued defendants, Arcotech Uniexpat, Inc. (Arcotech) and Craig Piatti,
     after defendants failed to issue plaintiff a refund for services. Relevant to this appeal, the
     circuit court granted Piatti’s motion to dismiss plaintiff’s conversion claim pursuant to section
     2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 2016)).
     Plaintiff appeals. For the reasons that follow, we reverse the judgment of the circuit court and
     remand for further proceedings.

¶2                                          BACKGROUND
¶3       For the purposes of this appeal, we accept as true all the well-pleaded facts in plaintiff’s
     complaint and draw all reasonable inferences in his favor. Edelman, Combs & Latturner v.
     Hinshaw & Culbertson, 338 Ill. App. 3d 156, 164 (2003).
¶4       In August 2014, plaintiff moved from China to pursue an undergraduate degree in civil and
     environmental engineering at the University of Illinois Urbana-Champaign. He enlisted the
     help of InternshipDesk, an assumed name of Arcotech, to secure an internship within his field
     of study for the summer of 2015. On October 5, 2014, plaintiff executed a written service
     agreement in which Arcotech guaranteed that it would secure a paid internship offer in
     plaintiff’s chosen field of study in the city of Chicago, along with a weekly stipend. Plaintiff
     agreed to pay a total of $7250. On October 5, 2014, plaintiff paid a $1000 nonrefundable
     deposit to secure his place in Arcotech’s program. Plaintiff paid the remaining balance within
     30 days of the execution of the service agreement. The service agreement sets forth Arcotech’s
     refund policy, which provides in relevant part, “If for any reason InternshipDesk is unable to
     secure the participant an internship offer in their field by the start of the program, $1000 of the
     program tuition is non-refundable.” Piatti executed the service agreement on behalf of
     InternshipDesk in his capacity as executive director.
¶5       On June 1, 2015, Piatti sent an e-mail informing plaintiff that “[i]t’s not looking too
     positive.” Plaintiff then sought the services of a different internship placement company. On
     June 5, 2015, plaintiff e-mailed defendants and requested a refund. Defendants provided
     plaintiff with a refund agreement that stated that a $6250 refund would be processed within
     120 days of the execution of the refund agreement. Plaintiff provided all the information
     required, and he signed and returned the refund agreement on June 17, 2015. Defendants failed
     to authorize the refund within 120 days. In November 2015, defendants requested plaintiff’s
     banking information to process the refund. Plaintiff again provided the requested information.
     Defendants never remitted the $6250 refund to plaintiff. On May 13, 2016, Arcotech was
     involuntarily dissolved by the Illinois Secretary of State, as Arcotech had failed to pay its
     annual report fee and franchise tax.
¶6       Plaintiff initiated this action on August 29, 2016, by filing a five-count initial complaint.
     He asserted claims under the Consumer Fraud and Deceptive Business Practices Act
     (Consumer Fraud Act) (815 ILCS 505/1 et seq. (West 2016)) against Arcotech and Piatti
     (counts I and II, respectively), and for breach of contract against Arcotech and Piatti (counts IV
     and V, respectively). Plaintiff also asserted a claim of conversion against Piatti (count III).
     Plaintiff’s conversion claim alleged that plaintiff was entitled to immediate possession of the
     $6250 no later than October 15, 2015, and that Piatti never authorized the refund despite
     plaintiff’s demand. Plaintiff alleged that it was within Piatti’s power as president of Arcotech

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       and the executive director of InternshipDesk to authorize the refund, and that by failing to
       remit the funds, Piatti “maintained wrongful control of funds owed to [plaintiff] in the refund
       amount of [$6250].” Plaintiff alleged that Piatti “actively participated in the authorized
       deprivation of [$6250] rightfully belonging to [plaintiff].” With respect to the conversion
       claim, plaintiff sought compensatory damages, punitive damages, court costs, and
       prejudgment interest.
¶7          Defendants moved to dismiss counts I, II, III, and V of the initial complaint pursuant to
       section 2-619(a)(9) of the Code. Relevant to issues before us on appeal, defendants argued that
       the conversion claim in count III should be dismissed because the $6250 was in the nature of a
       general obligation or debt, and “the funds tendered by [plaintiff] were not subject to any
       special designation, were never promised to be so held, were in fact not so held[,] and therefore
       cannot be a proper subject of conversion under applicable Illinois law.” The motion to dismiss
       was fully briefed. On March 17, 2017, the circuit court granted the motion to dismiss counts I,
       II, III, but denied the motion as to count V. The circuit court subsequently granted plaintiff
       leave to file an amended complaint.
¶8          The amended complaint again asserted claims under the Consumer Fraud Act against
       Arcotech and Piatti (counts I and II, respectively), a conversion claim against Piatti (count III),
       breach of contract claims against Arcotech and Piatti (counts IV and V respectively), and
       added an additional claim of common law fraud against Piatti (count VI). Plaintiff specifically
       repleaded count III in order to preserve his claim for appellate review. Defendants moved to
       dismiss counts I, II, III, V, and VI of the amended complaint pursuant to section 2-619(a)(9) of
       the Code, which the circuit court granted with prejudice. The circuit court transferred count IV
       of the amended complaint—the breach of contract claim against Arcotech—from the law
       division to the first municipal division based on the amount in controversy. Plaintiff then
       moved for summary judgment on his breach of contract claim against Arcotech. On January 8,
       2018, the circuit court granted summary judgment in favor of plaintiff on his breach of contract
       claim against Arcotech in the amount of $6250. Plaintiff filed a timely notice of appeal from
       the circuit court’s orders dismissing his conversion claim against Piatti set forth in count III of
       the initial and amended complaints.

¶9                                               ANALYSIS
¶ 10       On appeal, plaintiff argues that the circuit court erred by dismissing his conversion claim
       against Piatti pursuant to section 2-619 of the Code. Plaintiff argues that, in addition to alleging
       facts to support each element of a conversion claim, his claim was not barred by any
       affirmative matter. Specifically, he argues that the $6250 was a “specific identifiable fund
       capable of sustaining a conversion action.” He argues that the $6250 is not in the nature of a
       general obligation or debt because no creditor-debtor relationship exists between him and
       Piatti, since plaintiff paid money to Arcotech, not Piatti. Plaintiff further argues that if this
       court reverses the circuit court’s dismissal of his conversion claim, we should remand to the
       circuit court with instructions to transfer this case to the law division as opposed to the first
       municipal division.
¶ 11       We review de novo a circuit court’s ruling on a motion to dismiss. Lyons v. Ryan, 201 Ill.
       2d 529, 534 (2002). A motion to dismiss under section 2-619 of the Code admits the legal
       sufficiency of the complaint and asserts an affirmative matter outside the pleading that avoids
       the legal effect of or defeats the claim. Relf v. Shatayeva, 2013 IL 114925, ¶ 20. In ruling on a

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       section 2-619 motion, we accept as true all well-pleaded facts in plaintiff’s complaint and draw
       all reasonable inferences in plaintiff’s favor. Hermitage Corp. v. Contractors Adjustment Co.,
       166 Ill. 2d 72, 85 (1995). An affirmative matter in a section 2-619(a)(9) motion is a defense
       that negates the cause of action completely or refutes conclusions of law or conclusions of fact
       contained in the complaint that are unsupported by allegations of specific fact upon which the
       conclusions rest. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 486 (1994). The affirmative
       matter must be apparent on the face of the complaint or supported by affidavits or other
       evidentiary materials. Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 383 (1997). The
       defendant bears the initial burden of establishing that the affirmative matter defeats the
       plaintiff’s claim; if the defendant satisfies the burden, the burden shifts to the plaintiff to
       demonstrate that the defense is unfounded or requires the resolution of a material fact. Doe v.
       University of Chicago Medical Center, 2015 IL App (1st) 133735, ¶ 37.
¶ 12        Conversion is any unauthorized act that deprives a person of their property permanently or
       for an indefinite amount of time. In re Thebus, 108 Ill. 2d 255, 259 (1985). “The essence of
       conversion is the wrongful deprivation of one who has a right to the immediate possession of
       the object unlawfully held.” (Internal quotation marks omitted.) Roderick Development
       Investment Co. v. Community Bank of Edgewater, 282 Ill. App. 3d 1052, 1057 (1996) (citing
       In re Thebus, 108 Ill. 2d at 259). In order to state a claim for conversion, a plaintiff must allege
       (1) the defendant’s unauthorized and wrongful assumption of control, dominion, or ownership
       over the plaintiff’s personal property, (2) the plaintiff’s right in the property, (3) the plaintiff’s
       right to immediate possession of the property, absolutely and unconditionally, and (4) the
       plaintiff’s demand for possession of the property. General Motors Corp. v. Douglass, 206 Ill.
       App. 3d 881, 886 (1990). “Money may be the subject of conversion, but it must be capable of
       being described as a specific chattel, although it is not necessary for purposes of identification
       that money should be specifically earmarked.” In re Thebus, 108 Ill. 2d at 260. “[T]he general
       rule is that conversion will not lie for money represented by a general debt or obligation. It
       must be shown that the money claimed, or its equivalent, at all times belonged to the plaintiff
       and that the defendant converted it to his own use.” Id. at 261.
¶ 13        Here, the allegations in count III of plaintiff’s initial and amended complaint stated a claim
       for conversion against Piatti. Plaintiff alleged that (1) Piatti, in his role as president of
       Arcotech, agreed to refund the $6250 within 120 days of the date on which plaintiff submitted
       a written refund request; (2) by refusing to authorize the refund, Piatti maintained wrongful
       control over the $6250; (3) plaintiff had a right of immediate possession of the $6250 after the
       120-day period lapsed and that his right was absolute and unconditional; and (4) plaintiff made
       a demand for the money, which was never honored. Plaintiff further alleged that Piatti was
       liable for conversion because Piatti “actively participated in the unauthorized deprivation of
       $6,250.00 rightfully belonging to” plaintiff. These factual allegations are sufficient to state a
       conversion claim against Piatti.
¶ 14        We next turn to the issue before us on appeal and find that Piatti’s motion to dismiss did not
       identify any affirmative matter that, if true, would negate plaintiff’s conversion claim. Piatti
       relies on In re Thebus and Eggert v. Weisz, 839 F.2d 1261 (7th Cir. 1988) to argue that the
       $6250 was in the nature of a general debt or obligation because plaintiff “cannot identify a
       specific fund or money and therefore there is simply a debt rather than an action for
       conversion.” Additionally, in the circuit court, Piatti argued that the $6250 was “[p]laintiff’s
       payment for the services to be rendered by Arcotech” and was “no more than a payment


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       received from a customer and thus not a proper subject of a conversion action.” Piatti also
       relies on two nonbinding federal district court decisions, 3Com Corp. v. Electronic Recovery
       Specialists, Inc., 104 F. Supp. 2d 932 (N.D. Ill. 2000) and Rasmussen v. Sports Media Sales,
       Inc., 691 F. Supp. 153 (N.D. Ill. 1988), to argue that the $6250 was “not segregated in any
       account or otherwise earmarked or kept as distinct,” and was thus not the proper subject of a
       conversion action.
¶ 15        We rejected similar arguments in Roderick. There, the defendant bank received monthly
       payments from the purchaser of an apartment building, and the bank was to distribute 5% of
       the monthly payments to the plaintiff. When the purchaser made a final lump sum payment to
       pay off the balance of the purchase agreement, the bank refused to distribute 5% of the lump
       sum payment to the plaintiff. The plaintiff sued the defendant bank for conversion. The circuit
       court dismissed the complaint pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West
       1992)) and the plaintiff appealed. We reversed. In defense of the circuit court’s judgment, the
       bank argued that “an action for conversion may not be maintained for a mere failure to pay
       money unless it is capable of being described as a specific chattel.” Roderick, 282 Ill. App. 3d
       at 1058. In addressing this argument, we examined our supreme court’s decision in In re
       Thebus, an attorney discipline case, in which the court held that an attorney had not been
       shown to have converted government funds by failing to remit federal withholdings to the
       federal government that the attorney withheld from his employees’ paychecks. In re Thebus,
       108 Ill. 2d at 264. The supreme court examined the nature of the funds withheld and
       determined that the funds represented a general debt or obligation rather than an identifiable
       fund. Id. at 262. In Roderick, however, we determined that the plaintiff’s 5% interest in the
       trust was an identifiable fund because the amount was easily determined. Roderick, 282 Ill.
       App. 3d at 1059. The same is true here. There is no dispute that plaintiff demanded a refund of
       $6250, as that amount was specifically refundable under the original service agreement, and
       that defendants never refunded that amount. Furthermore, we believe that the $6250 was not
       merely a debt or general obligation to pay money. Plaintiff did not have any contract with Piatti
       individually because the service agreement was between plaintiff and Arcotech. In other
       words, Piatti never had any individual debt or obligation to plaintiff, and thus no
       debtor-creditor relationship existed between plaintiff and Piatti. The thrust of plaintiff’s
       complaint is that Piatti exercised unauthorized control over money legally due plaintiff and
       kept that money for himself when he refused to authorize Arcotech to refund the money due
       plaintiff.
¶ 16        Furthermore, there is no requirement in Illinois that, in order to be the proper subject of a
       conversion action, identifiable funds must be earmarked or kept segregated from other money.
       In In re Thebus, our supreme court specifically observed that a fund need not be earmarked in
       order to be specifically identifiable for the purposes of a conversion action. In re Thebus, 108
       Ill. 2d at 260. In Roderick, we held that, for the purposes of a conversion action, money need
       not be segregated from other funds. Roderick, 282 Ill. App. 3d at 1062-63. And as we observed
       in Roderick, a rule prohibiting a conversion claim for funds that are not segregated would give
       the converter the ability to control whether funds are subject to a conversion claim. Id. at 1063.
       In Illinois, it is sufficient that the money be adequately identified by description, which is
       undoubtedly the case here. Furthermore, the nonbinding federal district court cases on which
       Piatti relies for a contrary rule we view as persuasive authority only, and we believe that those
       decisions place too much emphasis on the segregation of funds element. Piatti’s reliance on


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       those cases is particularly misplaced here, where the money can easily be identified as a fixed
       sum.
¶ 17       Finally, Piatti argues that corporate officers are generally not liable for corporate
       obligations and that “there is nothing put forth by [plaintiff] that would justify a finding that
       [Piatti] individually acted in any conversion.” That is a matter of proof, and should not be
       decided on a motion to dismiss. Plaintiff’s complaint asserted that Piatti wrongfully exercised
       control over the $6250, which is enough to survive a motion to dismiss. Whether plaintiff can
       ultimately prove that allegation is yet to be determined.
¶ 18       In sum, we conclude that Piatti failed to identify any affirmative matter that would negate
       plaintiff’s conversion claim. The circuit court erred by dismissing count III of plaintiff’s
       complaint pursuant to section 2-619 of the Code. We therefore reverse the judgment of the
       circuit court as to count III and remand for further proceedings. Although plaintiff requests a
       remand to the law division because he seeks punitive damages, we note that punitive damages
       are also available in proceedings in the first municipal division. We express no opinion as to
       whether count III of plaintiff’s claim belongs in the law division or first municipal division of
       the circuit court. We therefore remand this matter to the presiding judge of the law division for
       assignment and further proceedings consistent with this decision.

¶ 19                                         CONCLUSION
¶ 20      For the foregoing reasons, the judgment of the circuit court is reversed, and we remand this
       matter to the presiding judge of the law division to determine which division of the circuit
       court should hear plaintiff’s conversion claim.

¶ 21      Reversed and remanded with directions.




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