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The plaintiffs, Donna and Steve Cruthis, filed their complaint against the defendant,Firstar Bank, N.A., for, inter alia, breach of contract, conversion, and consumer fraud (815ILCS 505/1 et seq. (West 2002)). The trial court entered a directed verdict for the plaintiffson their breach-of-contract claim. The jury returned a verdict for the plaintiffs on theirconversion claim and awarded them $33,682.80 in compensatory damages and $250,000 inpunitive damages. The trial court entered a judgment for the defendant on the plaintiffs'consumer fraud claim, and the court also entered in the defendant's favor a judgmentnotwithstanding the jury's verdict on the issue of punitive damages.

On appeal, the plaintiffs argue that the trial court erred in entering a judgmentnotwithstanding the verdict on the issue of punitive damages and in entering a judgment forthe defendant on the plaintiffs' consumer fraud claim. On cross-appeal, the defendant arguesthat it was entitled to a judgment notwithstanding the verdict on the plaintiffs' conversionclaim, that the jury improperly assessed damages for emotional distress and for loss of use,that the trial court erred in instructing the jury, and that the trial court erred in granting adirected verdict for the plaintiffs on their breach-of-contract claim.

We affirm in part and reverse in part.

In April 1992 the plaintiffs opened a checking account with the defendant'spredecessor. When they opened their account, the bank issued the plaintiffs an overdraftprotection line of credit in the amount of $3,500. The bank notified the plaintiffs that itwould advance automatically the overdraft protection line of credit only when a check waspresented for payment and the plaintiffs' checking account contained an insufficient balance. Prior to September 5, 2000, the plaintiffs had never triggered the overdraft protection lineof credit.

Donna's employer, May Company/Famous Barr (Famous Barr), through its bankaccount with Northern Trust Company (Northern Trust), deposited semimonthly payrollpayments of approximately $947 into the plaintiffs' checking account on May 15, 2000, May31, 2000, June 15, 2000, June 30, 2000, July 15, 2000, July 31, 2000, and August 15, 2000. In late August 2000, Famous Barr directed Northern Trust to retrieve these wage paymentsfrom the plaintiffs' account. In a letter written to the defendant and dated August 24, 2000,Northern Trust confirmed its request for the return of the payroll deposits made to Donnabetween May 15, 2000, and August 15, 2000, advising the defendant that Donna'semployment had been terminated on April 21, 2000. Famous Barr had not terminated Donnaon April 21, 2000.

The plaintiffs' account balance on September 1, 2000, was approximately $2,391. OnSeptember 5, 2000, the defendant withdrew $5,682.80 from the plaintiffs' account andtransferred the funds to Northern Trust. The defendant depleted the plaintiffs' account, andthe additional funds transferred to Northern Trust triggered the plaintiffs' overdraft protectionline of credit. Thereafter, four of the plaintiffs' checks were refused for insufficient funds,and the defendant charged the plaintiffs a returned-item fee of $15 each, totaling $60. Laterin September, the defendant waived the returned-item fees, and in October, the defendantreturned the funds to the plaintiffs' account and waived interest charges incurred pursuant tothe overdraft protection line of credit.

Matthew Liebheit, the defendant's assistant branch manager in September 2000,testified that the defendant did not notify the plaintiffs that it withdrew the funds. Matthewtestified that when Donna came to the bank to inquire about the funds withdrawn from heraccount, Matthew and Donna completed an affidavit requesting an investigation andasserting that the defendant had transferred the funds from the plaintiffs' account withouttheir authorization. After sending the affidavit to the defendant's automated clearinghousedepartment in St. Louis, Matthew notified Donna that because her employment had beenterminated in April, and pursuant to Northern Trust's request, the defendant had returned thefunds to Famous Barr. Matthew requested written documentation to document the legalityof withdrawing the funds without the plaintiffs' written permission.

Matthew testified that the defendant received a letter, dated September 8, 2000, fromthe plaintiffs' attorney requesting that the funds be returned to the plaintiffs' account by 4p.m. that day. Matthew forwarded that letter to Chrystal Riley-Stark, the defendant's vicepresident. Later that day, Chrystal contacted Matthew and told him that "everything lookedfine" so there was really nothing the defendant could do. Matthew then called the plaintiffs'attorney and told him that the defendant had refused to return the funds to the plaintiffs'account. Matthew testified that he thought he would have called the plaintiffs to notify themwhen the money was redeposited and to apologize for the mistake. Matthew testified thathe did not know whether the defendant changed its procedure to avoid a recurrence of theplaintiffs' situation.

Chrystal Riley-Stark testified that although Matthew had contacted her in September2000 regarding the plaintiffs' customer complaint, she did not give Matthew a legal opinionregarding the transfer of funds from the plaintiffs' account. Chrystal did not recall receivinga letter from the plaintiffs' attorney that had been forwarded by Matthew. Chrystal did notremember whom she told Matthew to phone and did not remember giving Matthew a phonenumber. Chrystal acknowledged that in her deposition she testified that she had directedMatthew to the automated clearinghouse department. Chrystal testified that receiving a letterfrom one of the defendant's branches, taking it to the legal department for review, and thenadvising the individual who had sent the letter of the legal department's position was notsomething she would normally do. Chrystal also did not recall calling Matthew to advisehim that the funds had been returned to the plaintiffs' account.

Donna testified that she had not been notified of the problem with the checkingaccount until she received a letter from the defendant indicating that four checks had beenreturned for insufficient funds. At that time, she went to the bank and spoke with Matthew. Donna testified that Matthew told her to complete the affidavit of unauthorized transfer tosend to the defendant's automated clearinghouse department for investigation. At that time,Matthew removed the returned-item fees for the checks returned for insufficient funds. Donna told Matthew that she was very upset and frustrated. Matthew subsequently advisedDonna that Northern Trust had notified the defendant that Donna's employment had beenterminated, which was the basis for the withdrawal of the funds. Matthew told Donna to callChrystal. Donna left two messages on Chrystal's voice mail, but Chrystal did not returnDonna's phone calls. Between September 5 and October 6, 2000, the defendant charged theplaintiffs interest of $100 on the overdraft protection line of credit. Donna testified that shecashed a credit card check to put funds into their account to pay bills.

Donna testified that in October 2000, after she and Steve had filed their lawsuit,Becky Shannon from Famous Barr notified her that it had returned the funds to her account. Donna testified that the defendant did not call to notify her that on October 8, 2000, thedefendant had returned the funds to the plaintiffs' account, including the $3,500 from theoverdraft protection line of credit. The defendant also waived the interest charges incurred.

Steve testified that his paychecks are also deposited into his and Donna's checkingaccount. After the defendant withdrew the funds from the plaintiffs' account, Steve spokewith Matthew concerning the problem, and Matthew indicated that Donna's employment hadbeen terminated. Steve was very upset after speaking with Matthew.

For the defense, Becky Shannon, Donna's supervisor at Famous Barr, testified that shenotified Donna in April 2000 that Donna had exhausted her sick pay benefits and her familymedical leave benefits, that during Donna's leave for her non-work-related surgery scheduledfor April 21, 2000, Donna would not receive her salary, and that Donna's last paycheckwould be dated April 30, 2000. On April 21, 2000, Becky instructed her secretary to changeDonna's status to an unpaid leave of absence. Becky testified that she spoke with Donna inJuly but was unaware that Donna was still receiving sick pay and testified that she did nottell Donna that the check in July was the last check Donna would receive. Becky testifiedthat in late August, during a routine audit, Becky learned that Donna was receiving hersalary, and Becky notified the payroll department. In October, Becky phoned Donna tonotify her that Famous Barr had deposited the money back into her account. Donna inquiredwhether she must repay Famous Barr, and Becky answered that she did not know.

Brian Duffy, divisional vice president at Famous Barr, testified that in April 2000, he also notified Donna that her sick pay benefits had expired and that her pay would besuspended during the last week of April. Although Donna was not vested and had not earnedher vacation pay, Brian made an exception and directed that Donna receive funds for twoweeks' vacation in the month of May, but Donna was not entitled to her vacation pay and hersalary. During a routine payroll audit in late August, Brian realized that Donna was stillbeing paid, and he notified the payroll department. Brian identified a September 12, 2000,letter he wrote to Donna notifying her that she had been overpaid and that she should submita check to Famous Barr or discuss a repayment arrangement. In October 2000, when Brianlearned that Famous Barr had withdrawn funds from the plaintiffs' bank account, hecontacted the director of payroll and requested that Famous Barr return the funds to theplaintiffs' account.

Donna testified that she had worked for Famous Barr for 18 years and had not beenterminated. She advised Famous Barr four to six weeks in advance that she would be havinga knee replacement surgery for a non-work-related injury. One week before Donna's surgery,Becky notified her that she had no sick pay benefits remaining. Donna disagreed with Beckyand requested to speak with Brian Duffy, Becky's supervisor, who also told Donna that shehad exhausted her sick days. Brian told Donna that they would pay her two weeks' vacation,which she received in the mail in May 2000. Donna continued to believe she had remainingsick pay benefits and was entitled to her salary and two weeks' vacation pay. Donna testifiedthat Becky called her in late July to discuss her work release and that Becky told her that theend-of-July check would be her last.

Donna testified that even though she was told in April that she would not receive hersalary in May, June, July, and August 2000, she did not call Famous Barr to notify it that shereceived direct deposits during that time. She explained that she believed that Famous Barrhad recognized its error and decided to pay her salary.

The defendant's net income in 2000 was $2.9 billion.

At the jury instruction conference, the defendant objected to the plaintiffs' verdictform, which used the language "We, the jury, find for [the plaintiffs] and against [thedefendant]" and allocated space for the value of funds transferred, emotional damages,punitive damages, and loss-of-use damages, on the basis that the jury would be unable todetermine whether it was awarding damages for conversion or for a breach of contract. Thetrial court allowed the plaintiffs' verdict form over the defendant's objection. The defendantalso argued that the plaintiffs had failed to plead allegations to support an award foremotional distress.

The trial court directed a verdict in favor of the plaintiffs on their breach-of-contractclaim. The jury returned the verdict form "find[ing] for [the plaintiffs] and against [thedefendant]." The jury assessed damages of $283,682.80, which were itemized as follows:

1. The value on September 5, 2000, of the funds transferred from theplaintiffs' checking account: $5,682.80.

2. Compensation for the loss of the use of the money transferred from theplaintiffs' checking account: $8,000.

3. Emotional distress experienced by Donna Cruthis: $10,000.

4. Emotional distress experienced by Steve Cruthis: $10,000.

5. Punitive damages: $250,000.

On September 17, 2002, the trial court entered a judgment in favor of the plaintiffs in theamount of $283,682.80 plus costs.

On October 10, 2002, the plaintiffs filed a motion to enter a judgment for thedefendant's violation of the Consumer Fraud and Deceptive Business Practices Act (815ILCS 505/1 et seq. (West 2002)), a claim to be decided by the court as a nonjury matter. SeeFalcon Associates, Inc. v. Cox, 298 Ill. App. 3d 652, 662 (1998). On December 12, 2002,the trial court entered a judgment in favor of the defendant on the plaintiffs' consumer fraudclaim, holding that the plaintiffs had failed to present evidence that the defendant's failureto follow the terms of the overdraft protection line of credit agreement was a deceptivepractice, as opposed to a simple breach of contract. On December 18, 2002, the plaintiffsfiled a posttrial motion with respect to this order.

On February 4, 2003, the trial court entered a judgment notwithstanding the verdictin favor of the defendant on the issue of punitive damages. The trial court found that theplaintiffs did not have a right to the direct deposits and that, therefore, it was not willful andwanton for the defendant to return the deposits to the rightful owner. In its order, the trialcourt stated:

"The evidence in this case when viewed in its light most favorable to the [p]laintiffsestablishes at best a basic conversion claim, nothing more. That at most, the evidenceshows a lack of good judgment by [the defendant] in withdrawing the direct depositsfrom the [p]laintiffs' checking account. There was no evidence that [the defendant]engaged in the practice of withdrawing funds from their [sic] customers' accountswithout their permission or authorization. There was no evidence that [the defendant]benefited in any way by returning the funds to Famous Barr."

The trial court denied the defendant's remaining requests in its posttrial motion anddenied the plaintiffs' posttrial motion. The plaintiffs filed their timely notice of appeal, andwith this court's permission, the defendant filed its late notice of cross-appeal.

The plaintiffs argue that the trial court erred in entering a judgment notwithstandingthe verdict in favor of the defendant on the issue of punitive damages because the juryproperly awarded them punitive damages based on their conversion claim. The defendantcounters that it was entitled to a judgment notwithstanding the verdict because the plaintiffsdid not prove essential elements of their conversion claim and because its conduct was notwillful and wanton.

A court should enter a judgment notwithstanding the verdict only when the evidence,viewed in the light most favorable to the opponent, so overwhelmingly favored the movantthat no contrary verdict could possibly stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510 (1967). A judgment notwithstanding the verdict is inappropriate where"reasonable minds might differ as to inferences or conclusions to be drawn from the factspresented." Pasquale v. Speed Products Engineering, 166 Ill. 2d 337, 351 (1995). Wereview de novo the trial court's judgment notwithstanding the verdict on the issue of punitivedamages. Pedrick, 37 Ill. 2d at 510; Medow v. Flavin, 336 Ill. App. 3d 20, 35 (2002).

Punitive damages are not awarded as compensation but serve instead to punish thewrongdoer and to deter that party and others from committing similar acts of wrongdoing inthe future. Loitz v. Remington Arms Co., 138 Ill. 2d 404, 414 (1990); Deal v. Byford, 127Ill. 2d 192, 203 (1989); Kemner v. Monsanto Co., 217 Ill. App. 3d 188, 197 (1991). "Because of their penal nature, punitive damages are not favored in the law, and courts mustbe cautious in seeing that they are not improperly or unwisely awarded. [Citations.]" Deal,127 Ill. 2d at 203-04.

The defendant argues that the evidence at the trial demonstrated that Donna was notentitled to receive the direct deposits from Famous Barr because she was on an unpaid leaveof absence at the time the payroll funds were deposited into her account and that, therefore,the plaintiffs' conversion claim fails, i.e., the plaintiffs failed to prove that they had anabsolute and unconditional right to the immediate possession of the property. We disagree.

"[G]enerally, punitive damages are not available in actions for breach of contractbecause a party suing for breach of contract is entitled only to the benefit of his bargain andthe purpose of awarding damages is to place the injured party in the position he would havebeen had it not been for the breach [citation]." Koehler v. First National Bank of Louisville,232 Ill. App. 3d 679, 683 (1992). However, punitive damages are recoverable where thebreach constitutes an independent tort, such as conversion. Cirrincione v. Johnson, 184 Ill.2d 109, 114 (1998); Kelsay v. Motorola, Inc., 74 Ill. 2d 172, 187 (1978); Koehler, 232 Ill.App. 3d at 683-84.

Conversion is an unauthorized act that deprives a person of his property permanentlyor for an indefinite time. In re Thebus, 108 Ill. 2d 255, 259 (1985). "The essence ofconversion is the wrongful deprivation of one who has a right to the immediate possessionof the object unlawfully held." Bender v. Consolidated Mink Ranch, Inc., 110 Ill. App. 3d207, 213 (1982). "It must be shown that the money claimed, or its equivalent, at all timesbelonged to the plaintiff and that the defendant converted it to his own use. [Citation.]" Inre Thebus, 108 Ill. 2d at 261. To prove the tort of conversion, "a plaintiff must establish that(1) he has a right to the property; (2) he has an absolute and unconditional right to theimmediate possession of the property; (3) he made a demand for possession; and (4) thedefendant wrongfully and without authorization assumed control, dominion, or ownershipover the property. [Citation.]" Cirrincione, 184 Ill. 2d at 114. Illinois courts have sustaineda plaintiff's cause of action for conversion against his or her bank. Roderick DevelopmentInvestment Co. v. Community Bank of Edgewater, 282 Ill. App. 3d 1052 (1996); Tri StateBank of East Dubuque v. Colby, 141 Ill. App. 3d 807 (1986) (a bank committed conversionwhen it froze its customers' entire savings account, with funds over $9,000, when it had notyet accelerated the notes due it, as required by contract, and the customers' matured debt wasonly $3,000).

In the present case, the jury properly found that the defendant wrongfully convertedthe plaintiffs' funds. When Famous Barr voluntarily transferred the funds to the plaintiffs'account, Famous Barr created a debtor-creditor relationship between it and the plaintiffs. See General Motors Corp. v. Douglass, 206 Ill. App. 3d 881, 892 (1990) (a debtor-creditorrelationship was created when General Motors Corp. mistakenly overpaid its dealer). Although the plaintiffs were alleged debtors of Famous Barr, the plaintiffs maintained theirright to the funds in their bank account with the defendant and their absolute andunconditional right to the immediate possession of the funds. Mutuality allows a bank tooffset debts owed by the depositor to the bank (see Symanski v. First National Bank ofDanville, 242 Ill. App. 3d 391, 396-97 (1993)), but the bank may not offset debts owed bythe depositor to third parties (see Highsmith v. Department of Public Aid, 345 Ill. App. 3d774, 779 (2004) (even in a garnishment action, a creditor does not have the automatic rightto garnish the funds of a debtor on deposit in a joint account)). The plaintiffs had a right tothe funds in their bank account, had the absolute and unconditional right to the immediatepossession of the funds in their account, and made a demand for possession, and thedefendant wrongfully and without authorization assumed control, dominion, or ownershipover the plaintiffs' property. See Cirrincione, 184 Ill. 2d at 114. The evidence supported theplaintiffs' conversion cause of action against the defendant, thereby establishing anindependent tort for which punitive damages may be awarded.

The defendant argues that even if the plaintiffs proved their claim of conversion,punitive damages were improperly awarded because the defendant did not act in a willful andwanton manner. We agree.

While the question of whether punitive damages can be awarded for a particular causeof action is a matter of law (Loitz, 138 Ill. 2d at 414), the question of whether the defendant'sconduct was sufficiently willful or wanton to justify the imposition of punitive damages isfor the jury to decide (Smith v. Hill, 12 Ill. 2d 588, 595 (1958)).

In Kelsay v. Motorola, Inc., the Illinois Supreme Court stated:

"It has long been established in this State that punitive or exemplary damagesmay be awarded when torts are committed with fraud, actual malice, deliberateviolence or oppression, or when the defendant acts willfully, or with such grossnegligence as to indicate a wanton disregard of the rights of others [citation]. Wherepunitive damages may be assessed, they are allowed in the nature of punishment andas a warning and example to deter the defendant and others from committing likeoffenses in the future. [Citation.]" Kelsay, 74 Ill. 2d at 186.

Similarly, in Loitz v. Remington Arms Co., the Illinois Supreme Court stated:

" 'Since the purpose of punitive damages is not compensation of the plaintiff butpunishment of the defendant and deterrence, these damages can be awarded only forconduct for which this remedy is appropriate-which is to say, conduct involving someelement of outrage similar to that usually found in crime. The conduct must beoutrageous, either because the defendant's acts are done with an evil motive orbecause they are done with reckless indifference to the rights of others.' (Restatement(Second) of Torts