                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                    TYLER V. CITY OF OMAHA


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                  BILLY ROY TYLER, APPELLANT,
                                                V.

                                   CITY OF OMAHA, APPELLEE.


                             Filed January 2, 2018.    No. A-16-867.


       Appeal from the District Court for Douglas County: GARY B. RANDALL, Judge. Affirmed.
       Billy Roy Tyler, pro se.
       Timothy G. Himes, Sr., Assistant Omaha City Attorney, for appellee.


       PIRTLE, BISHOP, and ARTERBURN, Judges.
       BISHOP, Judge.
       Billy Roy Tyler appeals, pro se, from the Douglas County District Court’s denial of his
replevin action seeking immediate return of his 1993 pickup truck which had been towed and
impounded. We affirm.
                                        BACKGROUND
       Tyler filed a replevin action (not in our record) against the City of Omaha (City) seeking
immediate delivery/return of his impounded 1993 Chevy pickup truck. Trial took place on August
29, 2016. Tyler testified his truck was legally parked at a street curb when “it was stolen by these
people.” He claimed he had been pulled over and arrested on some miscellaneous matters which
were subsequently “thrown out.” He said he left his truck parked legally by a curb at 21st and
Browne Streets (in Omaha, Nebraska) while he was in jail for 9 or 10 days. Just before he was
released from jail, the truck was towed. Tyler said the letter he received from the impound lot




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stated it was towed because of “no registration.” Tyler claimed “[t]hey towed it right before” he
got out of jail.
         Officer Alan Peatrowsky, of the Omaha Police Department, testified that on August 1,
2016, he encountered the vehicle at issue parked on a public street with fictitious plates. He recalled
it was approximately 9 a.m. His computer check revealed no current registration and no insurance.
He noted that from the date of purchase, the owner of the vehicle has 30 days to register the vehicle,
and “[i]t clearly had been passed the 30 days.” Peatrowsky stated, “It was towed because it was
unregistered on the City street. And a vehicle in that manner is subject to immediate tow.”
Peatrowsky had the truck towed to the City impound lot where he acknowledged it remained “until
the time of this hearing[.]”
         There was only one exhibit received in this case, but it contains multiple documents. There
is a Nebraska Certificate of Title for a 1993 Chevrolet pickup reflecting Tyler’s ownership and a
purchase date of April 21, 2016. There is a photocopy of Tyler’s driver’s license and a Nebraska
Vehicle Information System Vehicle Summary dated August 1, which contains a vehicle
identification number matching Tyler’s vehicle title, and shows zero registrations existing for that
vehicle. Also included is an Omaha Police Department “Impounded Vehicle” report dated August
1, which reflects Tyler’s vehicle was located abandoned at “N 21st St. and Browne St. with
fictitious plates” and the vehicle “was impounded for being expired on city street.” This document
shows Peatrowsky as the reporting officer. There is also a notice to Tyler from the City dated
August 2, which advises that his pickup, with no plates, was taken to the impound facility and if it
is not claimed and removed within 5 days, the vehicle and its contents will be considered
abandoned. It also states any person claiming the vehicle will be required to pay the cost of removal
and storage. Another notice from the City dated August 10 informs Tyler the vehicle has been
unclaimed and considered abandoned. Further, if it remains unclaimed, title to the vehicle will vest
in the City in 30 days. The notice refers to “Neb. Rev. Stat. [§ 60-1901 (Cum. Supp. 2016)].”
         The district court took judicial notice of this court’s unpublished opinion, Tyler v. Siebert,
No. A-94-659, 1996 WL 169875 (Neb. App. April 9, 1996) (not designated for permanent
publication), because Tyler argued it was applicable to the present matter.
         The district court denied Tyler’s requested relief in an order entered on September 2, 2016.
The court concluded that although the vehicle was not illegally parked, it had been abandoned, and
therefore it had not been wrongfully detained by the City. Tyler timely appealed.
                                    ASSIGNMENT OF ERROR
        Tyler assigns, restated, that the district court erred in not ordering the immediate return of
his truck.
                                    STANDARD OF REVIEW
        In a bench trial of a replevin action, the findings and disposition of the trial court have the
effect of a jury verdict and will not be disturbed unless clearly wrong. Packett v. Lincolnland
Towing, Inc., 227 Neb. 595, 419 N.W.2d 149 (1988). However, to the extent questions of law are
involved, we have an obligation to reach our own conclusions independent of those reached by the
lower courts. Allemang v. Kearney Farm Ctr., 251 Neb. 68, 554 N.W.2d 785 (1996).




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                                             ANALYSIS
        Initially we note that the City claims Tyler’s “brief is a travesty” and should be struck based
on “Tyler’s utter disregard for the rules applicable to preparation of briefs. Tyler’s assignment of
errors is nonsense and rife with factual errors and / or misrepresentations.” Brief for appellee at 8.
The City says Tyler’s attempt to assign error “boils down to” the district court not following a case
“that has no precedential value, is not binding authority on any court, and does not support Tyler’s
contentions in any way.” Id. at 9.
        While it is difficult to follow Tyler’s brief, he does assign an error which is later “argued,”
wherein he essentially states the district court erred in not ordering the immediate return of his
vehicle. His support for that error rests largely on an unpublished decision from our court, Tyler v.
Siebert, supra. Tyler claims the circumstances in the present matter are “identical” to those in that
case, and therefore, the district court should have ordered the truck returned to him in accordance
with that 1996 case. Brief for appellant at 5.
        The Tyler v. Siebert opinion stemmed from an action brought by Tyler for the return of an
impounded 1975 Pontiac Catalina. Tyler claimed to be the owner of that car, and was in the vehicle
when it was being driven by a juvenile with no valid driver’s license. The car was pulled over, and
in addition to the driver having no valid license, Tyler and a third passenger had suspended
licenses. There was also no title in the car, no current registration, and the vehicle’s plates had
expired 2 years prior. An outdated registration listed Tyler and his wife as owners of the vehicle.
The officer told Tyler that if Tyler’s wife showed up with a valid driver’s license, the officer would
accept that as proof of ownership and allow her to remove the car. Tyler’s wife never appeared,
however, Tyler returned with an unnamed man who did have a driver’s license. But since that
person’s name was not on the expired registration, the officer went ahead and had the vehicle
towed. Tyler brought an action to recover possession of the vehicle. The district court found the
City had the absolute right to possession of the vehicle until the appropriate fines and fees had
been paid.
        When the district court’s decision in Tyler v. Siebert was appealed, this court interpreted
Tyler’s claim for the return of his vehicle to be a replevin action. This court concluded Tyler
satisfied his burden of proof to show he was entitled to possession of the vehicle by ownership, so
the burden of proof shifted to the City to establish a superior right of possession. In that case, the
officer justified the towing based on the Omaha Municipal Code. However, those ordinances were
not made part of the appellate record and this court would not take judicial notice of municipal
ordinances not present in the record. This court then considered alternative means by which the
City could establish a superior right of possession, but found none. Instead, this court concluded
the evidence in the record showed the vehicle was properly parked, and the court could not find
any statutory authority allowing a police officer to impound a vehicle that was properly parked.
Accordingly, this court concluded the City did not have a superior right of possession and that
Tyler was entitled to the vehicle.
         Apparently based on his success in the Tyler v. Siebert case, Tyler believes he should be
equally successful in the present matter. It is true that the same legal principles for a replevin action
as discussed in Tyler v. Siebert would apply in the present case, so we set those forth first.




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         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. Packett v. Lincolnland Towing, Inc., supra. Once the plaintiff has made a prima facie
case, the burden shifts to the defendant to establish a superior right of possession. Id.
         Applying that law to the present facts, even if Tyler sufficiently proved the first two
requirements for replevin, the record does not show that the City wrongfully detained his truck.
As pointed out by the City, Tyler’s truck was impounded because it was abandoned on a city street.
Section 60-1901 states, in pertinent part: “(1) A motor vehicle is an abandoned vehicle: (a) If left
unattended, with no license plates or valid In Transit stickers issued pursuant to the Motor Vehicle
Registration Act affixed thereto, for more than six hours on any public property; . . .”
         We recall Tyler’s own testimony that the truck was towed just before he was released from
spending 9 to 10 days in jail. By his own testimony, the truck had been parked on a public street
for more than 6 hours. Further, Peatrowsky testified that Tyler’s truck was parked on a city street
and bore fictitious plates and had no current registration. This testimony was uncontroverted.
Tyler’s truck was abandoned as defined by the statute set forth above. Neb. Rev. Stat. § 60-1903(2)
(Reissue 2010) requires that the last-registered owner, if any, of an abandoned vehicle be notified
that if it is unclaimed, it will be sold or offered at public auction after 5 days from the date such
notice was mailed, or title will vest in the local authority 30 days after such notice was mailed. The
notices sent to Tyler about his towed vehicle were in compliance with the abandoned vehicle
statutes. Further, any person claiming such a vehicle shall be required to pay the cost of removal
and storage of such vehicle. See id. The local authority entitled to custody of an abandoned vehicle
shall be the county in which the vehicle was abandoned or, if abandoned in a city or village, the
city or village in which the vehicle was abandoned. Neb. Rev. Stat. § 60-1904 (Reissue 2010). In
this instance, the vehicle was left curbside on a public street in Omaha for more than 6 hours
without valid plates; accordingly, it was properly deemed abandoned and was subject to being
towed.
         Unlike the facts in Tyler v. Siebert, supra, where there was no evidence the City had a legal
basis to take immediate possession of Tyler’s vehicle in that instance, there is evidence in the
present matter to support the City’s possession under the motor vehicle abandonment laws
discussed above. Tyler’s reliance on Tyler v. Siebert, supra, is misplaced, and we find no clear
error in the district court’s decision to deny Tyler’s replevin action.
          For the sake of completeness, we also note the City suggests in its brief that Tyler’s claim
is moot because Tyler admitted at trial that he had regained possession of his truck. In his reply
brief, Tyler disagrees with this assertion. Likewise, we do not read the portion of the record relied
upon by the City to definitively reflect testimony from Tyler that his truck had been returned to
him by the time of trial. Instead, on August 18, 2016, when the case first came before the district
court (but was subsequently continued to August 29), there was some discussion and confusion
about there being another case before a different judge involving Tyler and a vehicle. Here is what
was stated:
                 [THE COURT]: Are they the same facts?
                 [City’s Attorney]: No, Your Honor.



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               [THE COURT]: Different vehicle?
               [City’s Attorney]: I don’t know.
               [Tyler]: Same vehicle, different fact, different date, different time.
               [THE COURT]: Did you ever get that car back?
               [Tyler]: Yeah, the truck.
               [THE COURT]: You got it back?
               [Tyler]: Yeah.
               [THE COURT]: On this one?
               [Tyler]: No. That one was for my money back I gave them.
               [THE COURT]: Oh, all right. This is a different case completely --
               [Tyler]: Yeah.
               [THE COURT]: -- unrelated.
               [Tyler]: Yeah.

Tyler’s testimony set forth above does not establish that the truck at issue had been returned to
him by the time of trial. In fact, during trial, Peatrowsky acknowledged the truck had been towed
to the City’s impound lot and remained there “until the time of this hearing.” Therefore, although
Tyler’s replevin claim fails, it was not moot.
                                         CONCLUSION
        The district court’s September 2, 2016, order denying Tyler’s replevin action was not
clearly wrong and is affirmed.
                                                                                   AFFIRMED.




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