Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/01/2018 09:07 AM CDT




                                                      - 100 -
                                  Nebraska Supreme Court A dvance Sheets
                                          300 Nebraska R eports
                                              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
                                  - 101 -
            Nebraska Supreme Court A dvance Sheets
                    300 Nebraska R eports
                           ZELENKA v. PRATTE
                            Cite as 300 Neb. 100

    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,
                              - 102 -
           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
                       ZELENKA v. PRATTE
                        Cite as 300 Neb. 100

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
                               - 103 -
           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
                        ZELENKA v. PRATTE
                         Cite as 300 Neb. 100

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
                                     - 104 -
                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                              ZELENKA v. PRATTE
                               Cite as 300 Neb. 100

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).
                                   - 105 -
               Nebraska Supreme Court A dvance Sheets
                       300 Nebraska R eports
                            ZELENKA v. PRATTE
                             Cite as 300 Neb. 100

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).
                                      - 106 -
                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                               ZELENKA v. PRATTE
                                Cite as 300 Neb. 100

      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).
                                    - 107 -
               Nebraska Supreme Court A dvance Sheets
                       300 Nebraska R eports
                             ZELENKA v. PRATTE
                              Cite as 300 Neb. 100

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.
                                    - 108 -
               Nebraska Supreme Court A dvance Sheets
                       300 Nebraska R eports
                             ZELENKA v. PRATTE
                              Cite as 300 Neb. 100

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.
                              - 109 -
           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
                       ZELENKA v. PRATTE
                        Cite as 300 Neb. 100

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
                                     - 110 -
                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                              ZELENKA v. PRATTE
                               Cite as 300 Neb. 100

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.
                                      - 111 -
                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                              ZELENKA v. PRATTE
                               Cite as 300 Neb. 100

   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.
