I am going to refer you to the decision In re Robert J. Affolter and Michelle A. Affolter, Debtors
Bankruptcy Case No. 95-30311-7; Adv. Case No. 95-3065-7,United States Bankruptcy Court, W.D. Wisconsin. You can find the entire decision here: http://www.wiwb.uscourts.gov/Decisions_rdm/dec151.htm
The opinion states:
“ The elements of conversion are well settled under Wisconsin state law: "Conversion is often defined as the wrongful exercise of dominion or control over a chattel. Conversion may result from a wrongful taking or a wrongful refusal to surrender property originally lawfully obtained." Production Credit Association v. Nowatzski, 90 Wis.2d 344, 353-54, 280 N.W.2d 118 (1979). The conversion occurs at the time the demand is refused, and a later attempt to ameliorate damages does not negate the tort
. In re Donny, 19 B.R. at 359.
As a threshold matter, "the plaintiff in a conversion action must be the rightful owner of the asset." Kerrigan v. American Orthodontics Corp., 960 F.2d 43, 48 (7th Cir. 1992). The Green County court did not expressly address the issue of property rights, but referred only to "benefits" conferred, finding that Affolter had acquired "benefits" from Hennager, had knowledge that he had acquired those benefits, and had accepted and retained those benefits for his use after the end of their relationship even though it was inequitable for him to do so.
Is a "benefit" that can be adjusted in equity akin to a property right? Watts v. Watts, 137 Wis.2d 506 (1987) states that "unmarried cohabitants may raise claims based upon unjust enrichment following the termination of their relationships where one of the parties attempts to retain an unreasonable amount of the property acquired through the efforts of both." Watts, 137 Wis.2d at 532-33 (emphasis added). Watts defines unjust enrichment as an equitable doctrine founded on the principle that one should not benefit from the wrongful retention of another's property, whether personalty, money, land, or some other form that is legally cognizable. This equitable doctrine is a mirror image of the legal doctrine of conversion. While equity focuses on what was gained, law seeks to redress what was lost. Affolter's refusal to return "property" created the inequity because he benefitted, and also satisfied the principal elements of conversion because it injured Hennager.
Wisconsin law recognizes that a property right can be manifest in a number of ways. Rather than focus on possession
of "bare legal" or paper title
, Wisconsin law focuses on "beneficial interest" in property. Wall v. Dept. of Revenue, 157 Wis.2d 1, 458 N.W.2d (1990); City of Milwaukee v. Greenberg, 163 Wis. 2d 28, 471 N.W. 2d 33 (1991). "What combination of rights ... will constitute ownership
is a question which must be determined in each case in the context of the purpose of the determination." Id., citing Mitchell Aero, Inc. v. Milwaukee, 42 Wis.2d 656, 662, 168 N.W.2d 183 (1969). The principle of looking beyond documents of title occurs in statutes as well as case law. See e.g. Wis. Stat. § 893.24 et seq. (property may be acquired by adverse possession); Wis. Stat. §§ 766.31, 766.51 (property titled and managed by one spouse is nevertheless marital property
); Wis. Stat. § 767.255 (at divorce, property is divided between parties regardless of how titled)."
I think you should abandon your arguments regarding conversion as it relates to real property, and focus on your 5th amendment takings clause claim in that regard.
That is not to say that you do not have a conversion claim. I believe you should focus your conversion claim on the personal property located on the real property. You could have been denied access to your equipment, furniture, household or office goods. These are all personal property, and a conversion claim can undoubtedly can be made for these items.
I hope this answers your questions, and assist you. If I can help further, please request me.
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