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Zelenka v. Pratte

Supreme Court of Nebraska

June 1, 2018

Peter Zelenka, appellee and cross-appellant,
v.
Jason D. Pratte, appellant and cross-appellee.

         1. 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 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 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.

         3. 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.

         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 cannot 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 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.

         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 [300 Neb. 101] dominion over the property, and will not necessarily operate to make the gift ineffectual.

          Appeal from the District Court for Douglas County: Kimberly 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, PC, 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 Riedmann, Judge, and Martinez, District Judge.

          Stacy, J.

         Peter 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.

         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, [300 Neb. 102] 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 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.

         1. Pavlov

         Both 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.

         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 [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 contract, ...


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