Actions: Conversion: Replevin: Appeal and
Error. Actions for conversion 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
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 commencement 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.
Gifts: Intent. 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.
Gifts: Proof. The person asserting the gift
must prove all the essential elements by clear, direct,
positive, express, and unambiguous evidence.
Gifts: Intent. The donor must have a present
donative intent and a clear and unmistakable intent to make a
Gifts. 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.
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
Ordinarily, for a gift to be delivered, it must be shown that
the owner parted with dominion and control over the gift.
Gifts: Parties. Delivery of a gift can take
place through a third party.
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 [300 Neb. 101]
dominion over the property, and will not necessarily operate
to make the gift ineffectual.
from the District Court for Douglas County: Kimberly Miller
Pankonin, Judge. Affirmed in part, and in part reversed and
remanded with directions.
J. Lewis and Thomas C. Dorwart, of Govier, Katskee. Suing
& Maxell, PC, L.L.O., for appellant.
M. Mason, of Kinney Mason, P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ.,
and Riedmann, Judge, and Martinez, District Judge.
Zelenka filed this action against Jason D. Pratte, alleging
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.
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
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, [300
Neb. 102] including home furnishings, electronics,
housewares, and a French bulldog named "Princess Pot
Roast, " which the parties refer to as
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.
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 agreement, 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.
parties claimed to be the owner of Pavlov. The evidence 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.
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.
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.
breeder was called as a witness. She testified that Pratte
contacted her by telephone and said he was [300 Neb. 103]
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