Zelenka v. Pratte , 300 Neb. 100 ( 2018 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    06/29/2018 12:11 AM CDT
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    ZELENKA v. PRATTE
    Cite as 
    300 Neb. 100
    Peter Zelenka, appellee and cross-appellant, v.
    Jason D. Pratte, appellant and cross-appellee.
    ___ N.W.2d ___
    Filed June 1, 2018.     No. S-17-086.
    1.	 Actions: Conversion: Replevin: Appeal and Error. Actions for con-
    version and replevin are law actions. In an action at law tried to the
    bench, a district court’s factual findings and disposition have the same
    effect as a jury verdict and will not be set aside unless clearly wrong.
    2.	 Replevin: Proof. In a replevin case, the plaintiff has the burden to prove
    by a preponderance of the evidence that at the time of the commence-
    ment of the action (1) he was the owner of the property sought, (2) he
    was entitled to immediate possession of the property, and (3) the defend­
    ant wrongfully detained it.
    3.	 Gifts: Intent. To make a valid inter vivos gift, there must be an inten-
    tion to transfer title to property, delivery by the donor, and acceptance
    by the donee.
    4.	 Gifts: Proof. The person asserting the gift must prove all the essential
    elements by clear, direct, positive, express, and unambiguous evidence.
    5.	 Gifts: Intent. The donor must have a present donative intent and a clear
    and unmistakable intent to make a gift.
    6.	 Gifts. Ordinarily, actual delivery is necessary where the subject of the
    gift is capable of manual delivery, but where actual manual delivery can-
    not be made, the donor may do that which, under the circumstances, will
    in reason be considered equivalent to actual delivery.
    7.	 ____. Generally, the exercise by the donee of dominion over the prop-
    erty which is the subject of a gift, or an assertion of a right to the prop-
    erty by the donee, generally will constitute an acceptance.
    8.	 ____. Ordinarily, for a gift to be delivered, it must be shown that the
    owner parted with dominion and control over the gift.
    9.	 Gifts: Parties. Delivery of a gift can take place through a third party.
    10.	 Gifts. The subsequent possession of a gift by the donor, while it may
    call for an explanation, is not necessarily incompatible with the donee’s
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    dominion over the property, and will not necessarily operate to make the
    gift ineffectual.
    Appeal from the District Court for Douglas County:
    K imberly Miller Pankonin, Judge. Affirmed in part, and in
    part reversed and remanded with directions.
    Ryan J. Lewis and Thomas C. Dorwart, of Govier, Katskee,
    Suing & Maxell, P.C., L.L.O., for appellant.
    Jill M. Mason, of Kinney Mason, P.C., L.L.O., for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke,
    JJ., and R iedmann, Judge, and M artinez, District Judge.
    Stacy, J.
    Peter Zelenka filed this action against Jason D. Pratte, alleg-
    ing Pratte was in possession of personal property belonging
    to Zelenka. The primary dispute involved a French bulldog,
    which Zelenka claimed he received as a gift from Pratte. After
    a bench trial, the district court found Zelenka proved the dog
    was a gift and ordered the dog be returned to Zelenka. With
    respect to the other items of personal property, the court found
    Zelenka had failed to meet his burden of proof. Pratte appeals,
    and Zelenka cross-appeals. We affirm in part, and in part
    reverse and remand with directions.
    I. FACTS
    Pratte and Zelenka were involved in a romantic relationship
    from 2010 until 2015. They lived together in a house owned
    by Pratte from July 2011 until they separated in June 2015.
    At that time, Zelenka moved out of the residence. He took
    only a few items of personal property with him, believing
    the move was temporary to allow the parties to work on their
    relationship.
    When Zelenka returned the following week, he discovered
    Pratte had changed the locks on the house. Zelenka was unable
    to retrieve items of personal property he claims were his,
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    including home furnishings, electronics, housewares, and a
    French bulldog named “Princess Pot Roast,” which the parties
    refer to as “Pavlov.”
    In March 2016, Zelenka filed a complaint against Pratte in
    the Douglas County District Court. The complaint primarily
    alleged a claim for conversion. Pratte filed an answer generally
    denying the allegations.
    A 2-day bench trial was held in January 2017. The parties
    advised the court they had reached an agreement regarding
    certain items of personal property, and pursuant to that agree-
    ment, the court ordered those items returned to Zelenka. The
    parties presented evidence regarding the remaining disputed
    items of personal property. Most of the evidence focused
    on Pavlov.
    1. Pavlov
    Both parties claimed to be the owner of Pavlov. The evi-
    dence was uncontroverted that Pratte paid for Pavlov, but
    Zelenka claimed he was given Pavlov as a birthday gift. Pratte
    denied this. In support of Zelenka’s claim that Pavlov was a
    gift, he offered his own testimony, testimony from his mother,
    and testimony from Pavlov’s breeder.
    Zelenka testified that several weeks before his birthday,
    Pratte surprised him by taking him to a local dogbreeder to
    pick out a puppy as a birthday gift. According to Zelenka,
    Pratte also gave him the option of waiting to select a puppy
    “if [he] wasn’t ready.” But after interacting with the puppies,
    Zelenka selected one and named it Pavlov. Zelenka did not
    take Pavlov home that day. Instead, he returned later, without
    Pratte, and took possession of the puppy.
    Zelenka’s mother also testified that her son received Pavlov
    as a birthday gift from Pratte. When asked how she knew the
    puppy was a birthday gift, Zelenka’s mother testified Pratte
    told her so.
    Pavlov’s breeder was called as a witness. She testified
    that Pratte contacted her by telephone and said he was
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    looking for a puppy as a gift for his boyfriend. He said he
    wanted his boyfriend to choose the puppy. She scheduled
    a time for Pratte and Zelenka to come look at the litter of
    five puppies. Ultimately, Zelenka picked out the puppy that
    Pratte purchased. According to the breeder, she then had the
    puppy spayed and microchipped at a local veterinary clinic,
    after which Zelenka returned alone to pick up the puppy. At
    that time, the breeder provided Zelenka with the adoption
    contract, registration forms for the American Kennel Club,
    and photographs of the puppy. The breeder confirmed that
    it was her understanding the puppy was a gift from Pratte
    to Zelenka.
    Pratte testified that he did not intend Pavlov to be a gift for
    anyone. According to Pratte, he contacted the breeder and told
    her he was looking for a companion dog for his other dog, a
    Labrador retriever. He then went to the breeder’s house alone
    to assess whether any of her puppies would be a good com-
    panion for his dog. He acknowledged that he later returned
    to the breeder with Zelenka and allowed Zelenka to select a
    puppy. But Pratte claimed he had already assessed the pup-
    pies’ temperaments to narrow the options, and he then allowed
    Zelenka to choose from those options, because he wanted
    Zelenka to feel included in his decision to add another dog to
    their household. Pratte testified that he paid for Pavlov, and
    the dog has always lived at his residence.
    2. Other Personal Property
    Both parties testified about the various other items of
    personal property in dispute. These included a “Dyson ani-
    mal vacuum,” a couch, a shelf, table lamps, outdoor pots, a
    deep freezer, several souvenirs from Africa, paintings, and
    patio furniture. Zelenka testified that he purchased each of
    these items for his personal use and not as a gift for Pratte.
    He testified about where and why the items were purchased
    and how he paid for them. He often used cash and had very
    little documentation to demonstrate ownership or proof of
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    purchase. Pratte generally offered contradictory testimony and
    documentation as to the purchase and ownership of the other
    items of property. He admitted Zelenka paid for a few of the
    disputed items, but claimed Zelenka purchased the items as
    gifts for him.
    3. District Court Order
    At the close of the evidence, the district court ruled from
    the bench. Regarding Pavlov, the court expressly found the
    testimony of Zelenka was more credible and was corroborated
    by the testimony of the breeder and Zelenka’s mother. The
    court found Zelenka had “sustained his burden of proof that
    . . . Pavlov was a gift” from Pratte and ordered Pratte to return
    Pavlov to Zelenka within 48 hours. As to the other items of
    personal property, the district court found Zelenka had failed
    to meet his burden of proof and ordered the property to remain
    with Pratte.
    The court subsequently entered judgment in accordance with
    its ruling from the bench and ordered each party to pay his own
    attorney fees and costs. Pratte timely appealed, and Zelenka
    cross-appealed.
    II. ASSIGNMENTS OF ERROR
    Pratte assigns the district court erred in finding Zelenka
    met his burden of proving Pavlov was a gift. On cross-appeal,
    Zelenka assigns the district court erred in finding he failed to
    meet his burden of proof with respect to the other items of
    personal property.
    III. STANDARD OF REVIEW
    [1] Actions for conversion and replevin are law actions.1 In
    an action at law tried to the bench, a district court’s factual
    1
    See, Gallner v. Larson, 
    291 Neb. 205
    , 
    865 N.W.2d 95
     (2015) (conversion);
    Allemang v. Kearney Farm Ctr., 
    251 Neb. 68
    , 
    554 N.W.2d 785
     (1996)
    (replevin).
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    findings and disposition have the same effect as a jury verdict
    and will not be set aside unless clearly wrong.2
    IV. ANALYSIS
    1. Conversion or R eplevin
    Before addressing the parties’ assignments of error, it is
    necessary to clarify the nature of the action tried to the court.
    Zelenka’s complaint styled his action as one for conversion,
    but both parties tried the action as one seeking replevin.
    Generally, the measure of damages for conversion is the fair
    market value of the converted property at the time and place
    of the conversion,3 while the object of a replevin action is to
    recover specific personal property.4
    Here, although the complaint was not styled as one for
    replevin, the parties tried the case as one seeking the return
    of specific personal property and neither party offered evi-
    dence regarding the fair market value of the disputed prop-
    erty. Throughout the trial, and in closing argument, Zelenka
    specifically asked the trial court for the immediate return
    of the personal property, including Pavlov. Pratte did not
    object that replevin relief was being sought, and on appeal,
    he does not assign error to the nature of the relief ordered by
    the court.
    Because the parties and the trial court treated this action as
    one for replevin, it would have been preferable for Zelenka
    to move to conform the pleadings to the evidence. But under
    Nebraska’s pleading rules, his failure to formally seek amend-
    ment is not dispositive.
    Neb. Ct. R. Pldg. § 6-1115(b) provides in pertinent part:
    When issues not raised by the pleadings are tried by
    express or implied consent of the parties, they shall be
    2
    See id.
    3
    NJI2d Civ. 4.27.
    4
    Pinnacle Bank v. Darlan Constr. Co., 
    270 Neb. 978
    , 
    709 N.W.2d 635
    (2006). See, also, 
    Neb. Rev. Stat. § 25-1093
     (Reissue 2016).
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    treated in all respects as if they had been raised in the
    pleadings. Such amendment of the pleadings as may be
    necessary to cause them to conform to the evidence and to
    raise these issues may be made upon motion of any party
    at any time, even after judgment; but failure so to amend
    does not affect the result of the trial of these issues.
    Here, despite styling the complaint as one for conversion,
    the parties tried the action as one for replevin and treated the
    case in all respects as if replevin had been raised in the plead-
    ings. We conclude the parties impliedly consented to try this
    action as one for replevin, and pursuant to § 6-1115(b), we
    therefore treat this action as one in which replevin was raised
    in the pleadings.5
    [2] In a replevin case, the plaintiff has the burden to prove
    by a preponderance of the evidence that at the time of the com-
    mencement of the action (1) he was the owner of the property
    sought, (2) he was entitled to immediate possession of the
    property, and (3) the defendant wrongfully detained it.6
    2. Pavlov
    In this case, Zelenka claimed Pavlov was his personal prop-
    erty, gifted to him by Pratte. Zelenka further claimed that after
    he moved out of Pratte’s house, Pratte wrongfully refused to
    return Pavlov to him. The district court found Zelenka proved
    Pavlov was a gift from Pratte. On this record, we agree.
    [3,4] To make a valid inter vivos gift, there must be an
    intention to transfer title to property, delivery by the donor,
    and acceptance by the donee.7 The person asserting the gift
    must prove all the essential elements by clear, direct, positive,
    5
    See Blinn v. Beatrice Community Hosp. & Health Ctr., 
    270 Neb. 809
    , 815,
    
    708 N.W.2d 235
    , 243 (2006) (“[e]ven when a party does not move for
    leave to amend pleadings, a court may constructively amend pleadings on
    unpleaded issues in order to render a decision consistent with the trial”).
    6
    Packett v. Lincolnland Towing, 
    227 Neb. 595
    , 
    419 N.W.2d 149
     (1988).
    7
    See Ferer v. Aaron Ferer & Sons Co., 
    273 Neb. 701
    , 
    732 N.W.2d 667
    (2007).
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    express, and unambiguous evidence.8 We address each element
    in turn.
    (a) Donative Intent
    [5] The donor must have a present donative intent and a
    clear and unmistakable intent to make a gift.9 Here, the breeder
    from whom Pavlov was purchased testified that Pratte con-
    tacted her about purchasing a puppy as a gift for his boyfriend.
    Zelenka and his mother both testified that Pavlov was given to
    Zelenka as a birthday gift from Pratte. Although Pratte denied
    Pavlov was a gift, the district court expressly found Zelenka’s
    testimony on this issue was more credible and was corrobo-
    rated by the testimony of the breeder and Zelenka’s mother. On
    this record, there is clear and unmistakable evidence of Pratte’s
    donative intent.
    (b) Delivery and Acceptance
    [6,7] Ordinarily, actual delivery is necessary where the
    subject of the gift is capable of manual delivery, but where
    actual manual delivery cannot be made, the donor may do that
    which, under the circumstances, will in reason be considered
    equivalent to actual delivery.10 And generally, the exercise by
    the donee of dominion over the property which is the subject
    of a gift, or an assertion of a right to the property by the donee,
    generally will constitute an acceptance.11
    [8] Here, the evidence shows that both delivery and accept­
    ance of the gift occurred when Zelenka picked Pavlov up from
    the breeder and took possession of the dog. Ordinarily, for a
    gift to be delivered, it must be shown that the owner parted
    with dominion and control over the gift.12 But in this case, the
    8
    
    Id.
    9
    See 
    id.
    10
    In re Estate of Lamplaugh, 
    270 Neb. 941
    , 
    708 N.W.2d 645
     (2006).
    11
    38 Am. Jur. 2d Gifts § 28 (2010).
    12
    Id., § 19.
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    breeder, and not Pratte, had dominion and control over Pavlov
    before the gift was made.
    [9] We have recognized that delivery can take place through
    a third party,13 and here, the evidence was uncontroverted that
    once Pavlov was ready to be adopted, the breeder relinquished
    possession directly to Zelenka and gave Zelenka the necessary
    paperwork to prove ownership of Pavlov. Zelenka accepted
    both the dog and the paperwork and thereafter generally held
    himself out as the owner of the dog.
    [10] Pratte argues there was insufficient evidence of delivery
    and acceptance, because it was uncontested that after Zelenka
    took possession of Pavlov, he kept the dog at Pratte’s house.
    But this fact is not incompatible with Zelenka’s dominion and
    control over Pavlov, especially since Zelenka moved from
    an apartment into Pratte’s home shortly thereafter. This court
    has recognized that the subsequent possession of a gift by the
    donor, while it may call for an explanation, is not necessarily
    incompatible with the donee’s dominion over the property, and
    will not necessarily operate to make the gift ineffectual.14 Here,
    the fact that Pavlov was kept at Pratte’s home after the gift was
    made is adequately explained by the fact that, for much of the
    relevant time period, Pratte and Zelenka were living together as
    a couple. We reject Pratte’s suggestion that this fact operates to
    make the gift ineffectual.
    We conclude Zelenka met his burden of proving Pavlov was
    a gift from Pratte. Pratte’s assignment of error to the contrary
    is without merit.
    3. Cross-A ppeal R egarding
    Other Personal Property
    As noted, the parties both offered testimony as to the other
    items of personal property. The district court found Zelenka
    failed to meet his burden of proof as to these items. After
    13
    See Kennedy v. Nelson, 
    125 Neb. 185
    , 
    249 N.W. 546
     (1933).
    14
    
    Id.
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    reviewing the evidence adduced and testimony received, we
    affirm in part, and in part reverse and remand with directions.
    (a) Niche Couch, Niche Table Lamps,
    and French Bulldog Lamp
    Zelenka testified that during the relationship, he purchased a
    leather couch and two table lamps from a store named “Niche,”
    and he purchased a French bulldog table lamp from a national
    retail store. Zelenka testified he purchased these items for his
    own use, and not as gifts for Pratte.
    Pratte agreed Zelenka purchased these items. He testified,
    however, that all of the items were gifted to him by Zelenka.
    Regarding the Niche lamps and the French bulldog lamp, Pratte
    offered no evidence going to the essential elements of donative
    intent, acceptance, or delivery. Because the undisputed evi-
    dence was that these lamps were purchased by Zelenka, and
    because Pratte failed to adduce evidence of the essential ele-
    ments to support his claim they were gifts, the district court
    erred in finding Zelenka failed to meet his burden of proof with
    respect to these three lamps.
    In support of his claim that the leather couch was a gift from
    Zelenka, Pratte offered, and the court received, exhibit 27. That
    exhibit is a printout of a social media post made by Pratte in
    October 2012. The post includes a photograph of a fully fur-
    nished living room with a leather couch, side chairs, a coffee
    table, an entertainment center, and related furnishings. The
    caption to this post reads “Early birthday surprise!!! Check out
    this amazing f**king living room!!! Love you Peter Zelenka!”
    The string of responses to this post includes one from Zelenka
    stating, “Its not quite finished but its a good start!” According
    to Pratte, these social media comments were referencing the
    fact that Zelenka had redecorated their living room as a birth-
    day surprise for Pratte.
    As the one claiming the leather couch was a gift, Pratte had
    the burden to prove the essential elements of donative intent,
    delivery, and acceptance by clear, direct, positive, express, and
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    unambiguous evidence.15 Here, the social media posting and
    Pratte’s limited testimony about it were insufficient to establish
    the leather couch was a gift. Pratte conceded as much on cross-
    examination when he admitted that Zelenka’s comment in
    exhibit 27 “doesn’t acknowledge intent, delivery, and accept­
    ance” regarding the leather couch.
    On this record, we conclude Pratte failed to meet his burden
    of proving the Niche leather couch, the Niche lamps, and the
    French bulldog lamp were gifts. Because the evidence was
    uncontroverted that Zelenka purchased these items and that
    Pratte refused to return them, the trial court erred in conclud-
    ing Zelenka had failed to meet his burden of proof. Consistent
    with the manner in which the parties tried this case, these three
    items should be returned to Zelenka.
    (b) Other Items of Personal Property
    We agree that Zelenka failed to meet his burden of proof
    with respect to the other items of personal property. The
    record shows the parties offered contradictory evidence with
    respect to the ownership of these other items of property,
    each asserting he was the respective purchaser. For example,
    Zelenka adduced evidence that his mother gave him $500 to
    purchase a Dyson animal vacuum and that he did so, but Pratte
    had a receipt demonstrating he purchased a Dyson animal
    vacuum. Zelenka testified he purchased patio furniture with
    cash and put it together without Pratte’s knowledge, while
    Pratte testified he purchased the patio furniture, Zelenka was
    with him at the time of purchase, and they worked together
    to construct the furniture. Zelenka testified he purchased the
    African souvenirs with cash, while Pratte produced a receipt
    indicating he had purchased the souvenirs. Contradictions
    appear in the evidence with respect to all the other items of
    personal property as well.
    15
    Ferer v. Aaron Ferer & Sons Co., 
    supra note 7
    .
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    The district court’s findings in this case have the same
    effect as a jury verdict and will not be set aside unless clearly
    wrong.16 Due to the contradictory nature of the evidence
    regarding the other items of personal property, there is no basis
    on which to set aside the district court’s finding that Zelenka
    failed to meet his burden of proving ownership.
    V. CONCLUSION
    For the foregoing reasons, we affirm in part, and in part
    reverse and remand with directions to enter judgment con­
    sistent with this opinion.
    A ffirmed in part, and in part reversed
    and remanded with directions.
    16
    See Gallner v. Larson, supra note 1.
    

Document Info

Docket Number: S-17-086

Citation Numbers: 300 Neb. 100

Filed Date: 6/1/2018

Precedential Status: Precedential

Modified Date: 3/3/2020

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