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ZELENKA v. PRATTE

Cite as 300 Neb. 100

Peter Zelenka, appellee and cross-appellant

Jason D. Pratte, appellant and cross-app

___ N.W.2d ___

Filed June 1, 2018. No. S-17-086.

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 

Nebraska Supreme Court Online Library

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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: 

Kimberly Miller Pankonin, Judge. Affirmed in part, a

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, an

JJ., and Riedmann, Judge, and Martinez, District 

Stacy, 

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, 
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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 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. Pavlo

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 
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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 companion 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 puppies’ 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 Prop

Both parties testified about the various other items of 

personal property in dispute. These included a “Dyson animal 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 Or

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 Repl

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 evidence regarding the fair market value of the disputed property. 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 amendment 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 pleadings. 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 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.6

2. Pavlo

In this case, Zelenka claimed Pavlov was his personal property, 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 contacted 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 corroborated 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 acceptance 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-Appeal Regard

Other Personal Prop

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 evidence was that these lamps were purchased by Zelenka, and 

because Pratte failed to adduce evidence of the essential elements 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 furnished 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 birthday 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 crossexamination when he admitted that Zelenka’s comment in 

exhibit 27 “doesn’t acknowledge intent, delivery, and acceptance” 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 concluding 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 consistent with this opinion.

 Affirmed in part, and in part r

and remanded with directi

16 See Gallner v. Larson, supra note 1.