Conversion

The tort of conversion is defined as the wrongful deprivation of someone else’s property. It is an act of dominion wrongfully asserted over someone else’s property inconsistent with his ownership interest. The essence of a conversion claim is not the attainment of the property by the wrongdoer but rather the wrongful denial that property by another.

Elements to Claim for Conversion

The tort of conversion generally occurs where a person wrongfully refuses to relinquish property to which someone else has the right of possession and it can be established despite evidence that the defendant took or retained property based upon his mistaken belief that he had a right to possession, since malice is not a critical element of the action. To state a claim for conversion, a plaintiff must allege facts sufficient to show ownership of the property together with facts that the other party wrongfully asserted dominion over that property. The correct measure of damages in a conversion action is the fair market value of the property at the time of the conversion occurred plus legal interest up through the date of judgment. The damages for conversion are not based on replacement value.

Conversion has been found in instances where:

• The wrongful use funds earmarked for a specific purpose with an express instruction that the funds be used for no other purpose.
• A beneficiary to a savings account refusal to return funds to a joint tenant from a separate account upon the request of said joint tenant was an exercise of dominion over the funds inconsistent with the joint tenant’s right to possess them.
• Business partnership funds that were converted for personal use by the defendant.

Statute of Limitations

The statute of limitations on a claim for conversion is four years. The period begins to run when the last element constituting the claim occurs. A defense based on the statute of limitations is typically an affirmative defense which should be pled in an answer. This defense can also be set forth in a motion to dismiss if it appears on the “face of a prior pleading.”

Defenses to a Claim of Conversion

A plaintiff may prevail on a cause of action for conversion only by pleading and proving all of the requisite elements of the civil action. This of course holds true for a claim of conversion, and therefore, a defense is the assertion that the plaintiff failed to sufficiently plead and prove the elements of his cause of action.

As with any claim, it is wise to consider whether any of the following affirmative defenses could be relevant to a defense against a conversion claim, because pursuant to Fla. R. Civ. P. 1.110, the following defenses must be pled clearly in the answer: accord and satisfaction; arbitration and award; assumption of risk; contributory negligence; discharge in bankruptcy; duress; estoppel; failure of consideration; fraud; illegality; injury by fellow servant; laches; license; payment; release; res judicata; statute of frauds; statute of limitations; waiver; and any other matter constituting an avoidance or affirmative defense. Of these 20 defenses, perhaps the following may be most likely to be applicable to a claim for conversion:

Fungible goods or items lacking specificity. In many instances, a claim for conversion cannot exist if the property converted is a fungible good or an item lacking specificity, but some exceptions exist.

Real estate. Real property cannot be the subject of a conversion action in Florida.

Failure to pay a financial debt: Failure to pay a financial debt is not conversion. For example, where the parties have an open account, and the defendant is not required to pay the plaintiff identical moneys which he collected, there can be no action in tort for conversion.

Contractual Actions: Actions sounding in contract are not conversion. An action in tort such as conversion is improper where the basis of the suit is a contract, either express or implied.

Sovereign immunity. The Florida Constitution authorizes the Florida legislature to limit Florida’s sovereign immunity. Fla. Stat. § 768.28 waives sovereign immunity for liability for torts, but only to the extent specified in the act. The act specifies that tort claims may be prosecuted “under circumstances in which the state or such agency or subdivision, if a private person, would be liable ….” A plaintiff cannot file suit unless, within 3 years of when the claim accrues, the plaintiff presents the claim in writing to both the tortfeasor agency and the Florida Department of Financial Services and one of them denies the claim in writing. A failure to respond to the written claim within six months is considered to be the equivalent of a written denial.

Do you Think you Have a Claim for Conversion or Have you Been Sued?

If you believe you may have a claim for conversion or find yourself wrongfully accused of having converted someone else’s property, contact Miami business lawyer Andrew J. Pascale today to protect and defend you and your legal rights. His courtroom and trial experience is often the difference maker in closely contested cases.