Proving a Conversion Claim
A recent federal district court opinion discusses what needs to be proven in a conversion claim. If you are pursing or considering to pursue a conversion claim, knowing what you need to plead and then prove is critical.
“Under Florida law, a conversion is ‘an unauthorized act which deprives another of his property permanently or for an indefinite time.’ ‘[T]he elements of conversion are ‘(1) an act of dominion wrongfully asserted; (2) over another’s property; and (3) inconsistent with this ownership therein.’ ‘Conversion may be demonstrated by a plaintiff’s demand [for return of the property] and defendant’s refusal,’ but ‘demand and refusal are unnecessary where the act complained of amounts to a conversion regardless of whether a demand is made.’”
Benessere Investment Group, LLC v. Swider, 2025 WL 2549979, *11 (S.D.Fla. 2025) (internal citations omitted).
In this case, the defendant moved to dismiss the plaintiff’s conversion count arguing that the claim should fail since the plaintiff regained control of its electronic storage account that is the subject of its conversion claim. This argument was rejected. “The ‘essence of conversion is not possession of property…but possession in conjunction with a present intent on the party of the wrongdoer to deprive the person entitled to possession of the property[.]’” Benessere Investment Group, supra, at *11 (citation omitted). Thus, the fact that the defendant returned plaintiff’s electronic storage account would NOT defeat the conversion claim. See id. Further, nominal damages are available to sustain a conversion claim. See id. at *12 (“Even assuming that Plaintiffs cannot demonstrate actual damages, the failure to demonstrate actual damages does not doom a conversion claim because nominal damages are still available where the plaintiff otherwise meets the elements of conversion.”).
Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.
