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PAN v. IOC REALTY SPECIALIST

Cite as 301 Neb. 256

Samuel Pan, doing busines as U

Daycare Center, appellee, v. IOC 

Specialist Inc. and Be

Tompkins, appellan

___ N.W.2d ___

Filed October 12, 2018. No. S-17-815.

1. Statutes: Judgments: Appeal and Error. Issues of statutory interpretation present a question of law, and when reviewing questions of law, an 

appellate court has an obligation to resolve the questions independently 

of the conclusion reached by the trial court.

2. Judgments: Appeal and Error. In reviewing a judgment awarded 

in a bench trial of a law action, an appellate court does not reweigh 

evidence, but considers the evidence in the light most favorable to the 

successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible 

from the evidence.

3. Intent: Words and Phrases. The word “include” preceding a list does 

not indicate an exclusive list absent other language showing a contrary intent.

4. Landlord and Tenant: Leases: Property: Statutes. The scope of the 

Disposition of Personal Property Landlord and Tenant Act is not so narrowly confined as to exclude commercial leases. As such, the act applies 

in commercial lease cases.

5. Landlord and Tenant: Property: Proof: Liability. All that is required 

under the Disposition of Personal Property Landlord and Tenant Act 

is evidence that would lead a prudent person to believe the property 

belonged to the requesting party. The landlord need not know for certain 

that the party requesting the personal property owns it in order to be 

relieved from liability.

6. Actions: Parties. In order for a party to be indispensable or necessary, 

the threshold determination that must be made is whether the party has 

an interest in the subject matter of the controversy.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

10/26/2018 10:13 AM CDT
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7. Landlord and Tenant: Property: Conversion. The remedial provisions 

within the Disposition of Personal Property Landlord and Tenant Act are 

rooted in the theories of conversion by seeking to restore the status quo 

when a landlord improperly disposes of or withholds the property of a 

former tenant.

8. Landlord and Tenant: Property: Damages: Words and Phrases. The 

phrase “value of the personal property” in its relation to “actual damages” is the fair market value of the property at the time the tenant’s 

property is improperly detained by the landlord.

9. Judgments: Appeal and Error. In reviewing a judgment awarded 

in a bench trial of a law action, an appellate court does not reweigh 

evidence, but considers the evidence in the light most favorable to the 

successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible 

from the evidence.

10. Attorney Fees: Appeal and Error. When an attorney fee is authorized, 

the amount of the fee is addressed to the trial court’s discretion, and its 

ruling will not be disturbed on appeal absent an abuse of discretion.

11. Attorney Fees: Records. An award of attorney fees involves consideration of such factors as the nature of the case, the services performed 

and results obtained, the length of time required for preparation and 

presentation of the case, the customary charges of the bar, and general 

equities of the case. If the contents of the record show the allowed fee 

not to be unreasonable, then that fee would not be untenable or an abuse 

of discretion.

Appeal from the District Court for Douglas County: Gregor

M. Schatz, Judge. Affirm

John C. Chatelain, of Chatelain & Maynard, for appellants.

Willow T. Head, of Law Offices of Willow T. Head, P.C., 

L.L.O., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy

Papik, and Freudenberg, J

Freudenberg, J

I. SUMMARY OF CASE

This case involves a dispute between a landlord and a tenant over the disposition of personal property. A former tenant, 

Samuel Pan, sued his landlord, IOC Realty Specialist Inc., and 
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its sole shareholder, Bernard M. Tompkins, when the landlord 

refused to return the tenant’s personal property that remained 

on the leased premises. After a bench trial, a judgment was 

entered against IOC Realty Specialist and Tompkins for the 

wrongful retention of property pursuant to the Disposition of 

Personal Property Landlord and Tenant Act (the Act).1 The 

district court held that IOC Realty Specialist and Tompkins 

violated the Act by knowingly retaining personal property that 

belonged to Pan and awarded Pan damages and attorney fees. 

We affirm.

II. FACTS

IOC Realty Specialist is a corporation that deals in real 

estate and property management. IOC Realty Specialist is 

owned by its sole shareholder and licensed real estate broker, 

Tompkins (collectively IOC). For approximately 20 years, 

Tompkins, by and through IOC Realty Specialist, has managed the leased premises at issue in Omaha, Nebraska, for 

its owners, Leon and Mary Kleinschmit. The Kleinschmits or 

their corporation, Millard Electronics, Inc., were consistently 

listed as the “lessor” on each lease signed concerning the subject property.

In 2007, Pan purchased a daycare business which included 

an assignment of a lease at a commercial property owned 

by the Kleinschmits. IOC facilitated this assignment as the 

Kleinschmits’ real estate broker. The leasehold was assigned 

in October 2007, designating Pan and his business partner, 

Mary Chol, as the new tenants on the assignment agreement 

and lease documentation. In 2007, Chol left the business 

arrangement with Pan. However, Pan’s daycare business continued to lease the property on a month-to-month basis until 

June 2014.

In June 2014, Pan negotiated with Ci Nuer Ben America 

(CNBA), a Nebraska corporation, for the purchase of Pan’s 

1 Neb. Rev. Stat. §§ 69-2301 to 69-2314 (Reissue 2009 & Cum. Supp. 

2016).
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daycare business and all of Pan’s personal property on the 

leased premises. The personal property included various children’s toys, sleeping mats, appliances, a wooden fence, a storage shed, and outside playsets embedded in concrete at the 

back of the building. Pan advised IOC of his agreement with 

CNBA for the purchase of Pan’s daycare business, including all 

of his personal property on the leased premises. IOC met with 

the owner of CNBA, James Panoam, in July and signed a new 

lease to begin CNBA’s tenancy of the property on August 1.

Soon thereafter, CNBA paid rent for the month of August, 

but failed to make any further rent payments. Additionally, Pan 

never received any payment from CNBA under the terms of 

their agreement and, as a consequence, Pan never delivered the 

keys to the lease premises to CNBA.

Pan advised IOC in August 2014 that CNBA never paid the 

contract price for the personal property on the leased premises. Pan repeatedly attempted to recover his property through 

December. Pan called IOC and visited the leased property in 

an effort to retrieve the personal property at issue, but found 

that the locks had been changed.

Pan and IOC spoke both over the telephone and in person 

regarding the disposition of the property. At one point, IOC 

allowed Pan to access the leased property to recover some of 

his belongings. However, IOC did not allow Pan to retrieve 

the remainder of his property after further requests from Pan 

to do so.

After 3 consecutive months (September through November 

2014) of nonpayment of rent, IOC evicted CNBA and sought 

a new lessee. In an effort to mitigate damages and relet the 

building, IOC had several personal property items subject to 

the agreement between Pan and CNBA moved to a warehouse 

that IOC managed for Millard Electronics.

Pan retained an attorney who sent a letter to IOC requesting that Pan’s property be returned. IOC stated it was concerned about future property disputes between Pan and CNBA. 

Therefore, IOC requested that Pan provide a statement from 
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CNBA waiving its claim to the property. On December 26, 

2014, Pan provided IOC an affidavit from Panoam, identifying 

himself as president of CNBA, and indicating that Pan owned 

the property. IOC refused to return the property and requested 

a notarized corporate resolution, reasoning that the initial affidavit was insufficient to bind CNBA. On January 12, 2015, 

Pan provided a second statement from Panoam as “President 

and Sole Shareholder d/b/a [CNBA]” containing a list of personal property and stating that CNBA did not have any ownership in the personal property on the leased premises. However, 

IOC again refused to return the personal property, because it 

did not receive a corporate resolution as requested.

In January 2015, IOC entered into a new lease with another 

company to operate a daycare. Some of the disputed property 

was considered by IOC too large to remove and remained on 

the leased premises. IOC permitted the new daycare to utilize 

the property.

IOC did not request storage fees from Pan during any of 

their business discussions regarding the property. IOC first 

requested storage fees when it filed a counterclaim for such 

payment in its answer to Pan’s complaint.

In June 2015, IOC mailed correspondence to Pan stating a 

willingness to release the subject personal property if Pan would 

provide a “‘Transfer or Assignment and Indemnification,’” 

requesting that Pan indemnify IOC from claims by CNBA. 

Pan refused to agree to indemnify IOC and subsequently filed 

suit for recovery of the property, damages for IOC’s retention 

of the property, and attorney fees. IOC denied that Pan was 

entitled to the property and filed a counterclaim for storage 

fees incurred.

1. Exhibits 17 and 32 and Reaso

Belief of Own

During trial, two affidavits were admitted into evidence 

over hearsay objections. The first, exhibit 17, was a letter authored by Pan’s attorney which included one of the 
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above-mentioned affidavits from Panoam doing business as 

CNBA. The affidavit asserted that the property did not belong 

to CNBA, but, rather, it belonged to Pan. The court admitted 

the exhibit, reasoning that the exhibit was being offered as a 

showing by Pan that he complied with IOC’s demand for a 

statement from CNBA disavowing its ownership in the subject 

personal property.

In a similar fashion, Pan offered exhibit 32, the second 

affidavit by Panoam stating that the personal property located 

at the subject leased premises did not belong to CNBA. The 

court again overruled the hearsay objection, finding Pan was 

not offering the exhibit for the truth of its contents. Further, 

the district court detailed that exhibit 32 would be utilized 

only to show that Pan complied with the requests made by 

IOC as opposed to proving that the property was owned 

by Pan.

2. Evidence of Damag

Fair Market Val

At trial, Pan opined on the value of the disputed personal 

property. Pan, although lacking several itemized and specific 

receipts of his expenditures on the subject personal property, asserted that the property was worth $27,611, according to an itemization in exhibit 14. In addition, Pan testified as to the accuracy of bank statements and copies of 

checks stemming from two accounts used in the operation 

of his daycare business. Pan also testified that these statements and checks corresponded to the property at issue. 

Generally, these bank statements and checks identify to whom 

funds were paid, but do not enumerate the specific purchases 

being made.

Contesting Pan’s asserted valuation of the personal property, IOC presented testimony that the property was bug 

infested, dirty, and in poor condition following CNBA’s eviction in November 2014. IOC did not present evidence as to a 

specific monetary value of the personal property. No expert 
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evidence was presented by either party regarding the fair 

market value of the property at issue.

3. District Court’s Final O

After the trial, the district court found that the Act applied. 

The court reasoned that by utilizing the phrase “whether such 

premises are used as a dwelling unit or self-storage unit or 

facility or not” in the definition of “tenant,” the Act did not 

preclude commercial tenants from citing the Act in attempting 

to retrieve their personal property from landlords.

The district court found each defendant to be jointly and 

severally liable, because neither IOC Realty Specialist nor 

Tompkins made any distinction between themselves in the 

pleadings. Further, the court found IOC held itself out to be 

the owner, landlord, and lessor of the property in question and 

never took the position that it was simply an agent for the true 

owners of the property in any pleadings filed in the case. The 

court also noted that IOC’s counterclaim for storage fees corroborated this finding.

Based on the evidence received at trial, the district court 

found that IOC retained Pan’s property in violation of the 

Act. By finding that IOC withheld Pan’s property from him 

while knowing that Pan’s sale of the property had not been 

completed in August 2014, the court implicitly found IOC’s 

asserted belief that the property belonged to CNBA was 

unreasonable.

The court relied on exhibit 14, as well as the testimony 

regarding the condition of the property, in order to determine 

damages in the case. Pan was awarded $10,000, or approximately 50 percent of Pan’s personal valuation, in damages. 

The court notably excluded the storage shed and fence, finding 

that these items were permanently affixed to the real property 

and no longer personal property.

Also pursuant to the Act, the district court awarded Pan 

attorney fees. IOC’s counterclaim for storage fees was dismissed. From this order, IOC appeals.
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III. ASSIGNMENTS OF ERROR

IOC assigns that the district court erred in (1) failing to 

join necessary and indispensable parties, (2) admitting hearsay into evidence, (3) finding that Pan had ownership and a 

right to possession of the subject party, (4) entering a money 

judgment in a replevin action without determining that the 

property could not be returned, (5) determining the fair market value of the property at issue without sufficient evidence, 

(6) finding the Act applicable to a commercial lease, (7) finding that IOC violated the Act, and (8) denying IOC’s claim 

for storage fees.

IV. STANDARD OF REVIEW

[1] Issues of statutory interpretation present a question of 

law, and when reviewing questions of law, an appellate court 

has an obligation to resolve the questions independently of the 

conclusion reached by the trial court.2

The amount of damages to be awarded is a determination 

solely for the fact finder, and its action in this respect will 

not be disturbed on appeal if it is supported by evidence and 

bears a reasonable relationship to the elements of the damages 

proved.3 With respect to damages, an appellate court reviews 

the trial court’s factual findings under a clearly erroneous standard of review.4

[2] In a bench trial of a law action, the trial court’s factual 

findings have the effect of a jury verdict, and the Supreme 

Court will not disturb those findings unless they are clearly 

erroneous.5 In reviewing a judgment awarded in a bench trial 

of a law action, an appellate court does not reweigh evidence, 

2 See Whipps Land & Cattle Co. v. Level 3 Communications, 265 Neb. 472, 

658 N.W.2d 258 (2003).

3 Funk v. Lincoln-Lancaster Cty. Crime Stoppers, 294 Neb. 715, 885 

N.W.2d 1 (2016).

4 Id.

5 Mays v. Midnite Dreams, 300 Neb. 485, 915 N.W.2d 71 (2018).
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but considers the evidence in the light most favorable to the 

successful party and resolves evidentiary conflicts in favor of 

the successful party, who is entitled to every reasonable inference deducible from the evidence.6

When an attorney fee is authorized, the amount of the fee is 

addressed to the trial court’s discretion, and its ruling will not 

be disturbed on appeal absent an abuse of discretion.7

V. ANALYSIS

1. The Act or Rep

Before addressing the parties’ assignments of error, it is 

necessary to clarify the nature of the action tried to the court. 

Pan’s complaint styled his action as one for replevin, but both 

parties address issues of the Act on appeal and tried the action 

largely as one seeking damages under the Act. Generally, the 

measure of damages under the Act are (1) money damages 

not exceeding fair market value of the personal property and 

(2) attorney fees,8 while the object of a replevin action is to 

recover specific personal property.9

The parties tried the case as one seeking primarily monetary 

damages. On appeal, IOC does not assign error to the district 

court’s order for an unpled remedy. Thus, while it would have 

been preferable for Pan to move to conform the pleadings to 

the evidence, Pan’s failure to formally seek amendment is not 

dispositive.10

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 

treated in all respects as if they had been raised in the 

6 Id.

7 ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818, 896 

N.W.2d 156 (2017).

8 § 69-2312.

9 Zelenka v. Pratte, 300 Neb. 100, 912 N.W.2d 723 (2018).

10 See id.
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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.11

Here, despite styling the complaint as one for replevin, the 

parties tried the action as one for damages under the Act and 

treated the case in all respects as if the Act had been raised in 

the pleadings. We conclude the parties impliedly consented to 

try this action as one for remedy under the Act and, pursuant 

to § 6-1115(b), treat this action as one in which the Act was 

raised in the pleadings.

2. The Act Applie

Commercial Leas

This is the court’s first opportunity to address the Act, which 

provides procedures that landlords are to follow when a former 

tenant abandons personal property.12 It also provides remedies 

to tenants in the event they seek the return of property and the 

landlord improperly refuses.13

The fundamental objective of statutory interpretation is to 

ascertain and carry out the Legislature’s intent.14 When statutory interpretation is one of first impression, the statutory 

language is to be given its plain and ordinary meaning, and 

an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, 

and unambiguous.15 The court, in discerning the meaning of 

a statute, should determine and give effect to the purpose 

and intent of the Legislature as ascertained from the entire 

11 See Zelenka v. Pratte, supra note 9 (citing Blinn v. Beatrice Community 

Hosp. & Health Ctr., 270 Neb. 809, 708 N.W.2d 235 (2006)).

12 See §§ 69-2303 through § 69-2307.

13 See § 69-2312.

14 State v. Thompson, 294 Neb. 197, 881 N.W.2d 609 (2016).

15 Dean v. State, 288 Neb. 530, 849 N.W.2d 138 (2014).
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language of the statute considered in its plain, ordinary, and 

popular sense.16

In construing statutes, legislative intention is to be determined from a general consideration of a whole act with reference to the subject matter to which it applies and the particular 

topic under which the language in question is found, and 

intent so deduced from the whole will prevail over that of a 

particular part considered separately.17 When words of a particular clause, taken literally, would plainly contradict other 

clauses of the same statute, or lead to some manifest absurdity 

or to some consequences which a court sees plainly could not 

have been intended, or to result manifestly against the general 

term, scope, and purpose of the law, then the court may apply 

the rules of construction to ascertain the meaning and intent 

of the lawgiver, and bring the whole statute into harmony 

if possible.18

IOC argues on appeal that the Act does not apply to commercial leases. Rather, IOC contends that by specifically identifying the terms “‘dwelling unit’” and “‘self-storage unit’” 

in certain sections of the Act, the Legislature intended for the 

statute to be read narrowly.19 Further, IOC argues that the district court erred in construing § 69-2302(6) by reading a meaning into it that was not plainly there. We disagree.

IOC relies on the language of § 69-2302(1) and (6), defining landlord and tenant respectively, in making its argument. 

Section 69-2302(1), defining landlord, states, “Landlord [is 

defined as] the owner, lessor, or sublessor of . . . premises, 

including self-service storage units or facilities, for rent or his 

or her agent or successor in interest.” (Emphasis supplied.) 

Section 69-2302(6) defines “[t]enant” to mean “a person entitled under a rental agreement to occupy any premises for rent 

16 Farmers Co-op v. State, 296 Neb. 347, 893 N.W.2d 728 (2017).

17 Lang v. Sanitary District, 160 Neb. 754, 71 N.W.2d 608 (1955).

18 Dean v. State, supra note 15.

19 Brief for appellants at 37.
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or storage uses to the exclusion of others whether such premises are used as a dwelling unit or self-service storage unit or 

facility or not.” (Emphasis supplied.)

[3] This court has held that the word “include” preceding a 

list does not indicate an exclusive list absent other language 

showing a contrary intent.20 Thus, the identification of “storage units or facilities” within definition of “landlord” under 

§ 69-2302(1) does not itself indicate a limitation of the Act 

to self-storage units and dwellings. Rather, the inclusion of 

these two types of facilities would indicate a nonexclusive list 

of example applications. Therefore, the Legislature’s specific 

identification of storage units and facilities in this section 

would not create such a limiting effect as to indicate that the 

Act applies only to leases of that nature.

Regarding the definition of “tenant,” the phrase “whether or 

not,” as found in the definition of “tenant” under § 69-2302(6), 

is plainly defined to indicate that it is not important which of 

the possibilities are true.21 In addition, a reading of subsection (6) of § 69-2302, when considering the rest of the statute, 

specifically in conjunction with the definition of “landlord” at 

subsection (1), would not produce such a narrowed scope as 

IOC suggests. Rather, a plain reading of this definitional section would indicate that the use of the premises or nature of the 

lease would not have an effect on its applicability.22 Moreover, 

the definition of “tenant” also broadly includes the language 

“any premises for rent or storage.”23

[4] We find that the scope of the Act is not so narrowly confined as to exclude commercial leases. As such, the Act applies 

in commercial lease cases.

20 Timberlake v. Douglas County, 291 Neb. 387, 865 N.W.2d 788 (2015).

21 See “Whether or not,” Cambridge Dictionary, https://dictionary.cambridge.

org/dictionary/english (last visited Sept. 24, 2018).

22 See § 69-2302(1) and (6).

23 § 69-2302(6).
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3. Violation of th

The district court found that, in violation of the Act, IOC, 

as the landlord of the leased premises, wrongfully retained 

Pan’s personal property by failing to return it to Pan upon his 

request. IOC argues on appeal that (1) IOC was not the “landlord” under § 69-2302(1), (2) Pan was not the “former tenant” 

under § 69-2307(1), and (3) § 69-2302(4) of the Act requires a 

“[r]easonable belief” that the personal property belonged to the 

requesting party before the landlord is required to return the 

property to that party. Lastly, IOC argues that the Act requires 

the payment of storage fees to IOC.

Under § 69-2307(1):

A landlord shall release personal property left on the 

vacated premises to the former tenant or to any person 

reasonably believed by the landlord to be the owner if 

such tenant or other person pays the reasonable costs 

of storage and advertising and takes possession of the 

property not later than the date specified in the notice for 

taking possession.

The purpose of § 69-2307(1) is to protect landlords from liability to owners of personal property when the landlord erroneously surrenders property to a party other than the true owner 

but who the landlord reasonably believed was the owner. 

Conversely, if the requesting party is not a former tenant or a 

person that the landlord reasonably believes owns the personal 

property, the landlord would not be protected from liability 

under § 69-2307(1).

Under § 69-2312, the Act plainly envisions a cause of action 

by a tenant for landlord violations of its provisions. Reading 

§§ 69-2307 and 69-2312 in conjunction, a landlord would not 

be required to relinquish property to any party that is either 

(1) not a former tenant or (2) not a person who is reasonably believed by the landlord to be the owner of the personal 

property at issue. But a landlord would be required to release 

the property to a former tenant or a person claiming ownership of the personal property, so long as the landlord, under an 
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objective, prudent person standard, should reasonably believe 

the requesting party is the owner of the personal property in his 

possession and that person pays reasonable storage fees to the 

extent required to be paid by the Act.

(a) Landlord

Addressing IOC’s first contention that it is not the landlord 

under the Act, the definition of a landlord under § 69-2302(1) 

explicitly provides that the landlord is the “owner, lessor, or 

sublessor . . . or his or her agent or successor in interest.” This 

definition clearly includes agents under its scope. Tompkins 

admitted in his testimony at trial that he, as well as his company, IOC Realty Specialist, served as the Kleinschmits’ agent 

for the lease of the property for years. Consequently, IOC is 

considered the landlord of the property for the purposes of 

applying this section of the Act.

(b) Former Tenant

IOC contends that CNBA, and not Pan, was the “former tenant” for the purposes of applying § 69-2307(1) of the Act. The 

definition of tenant under the Act, in pertinent part, broadly 

defines tenant to include “person[s] entitled under a rental 

agreement to occupy any premises for rent or storage uses 

to the exclusion of others.”24 Pan falls under this definition, 

because he rented the leased premises and operated his daycare 

business on the property for several years.

But § 69-2307(1) specifies that the landlord shall release 

personal property to the former tenant. Giving the word “former” its plain and ordinary meaning, as Nebraska law requires, 

“former” is defined as having been previously or “coming 

before in time.”25 There is no reason to narrowly construe the 

term “former tenant” in § 69-2307(1), as IOC suggests. Rather, 

“former tenant” includes any past tenant to whom the property 

24 § 69-2302(6).

25 Merriam Webster’s Collegiate Dictionary 459 (10th ed. 2001).
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may have belonged. Under such an analysis, the district court 

did not err in finding that Pan was a former tenant under the 

Act and that IOC was required to release the personal property 

to Pan.

(c) Reasonable Belief That Pan 

Was Owner of Property

IOC also asserts that it lacked a reasonable belief that Pan 

was the owner of the property. IOC could be relieved of liability if it did not have a reasonable belief that Pan was the true 

owner of the personal property.26

The Act defines reasonable belief at § 69-2302(4):

Reasonable belief shall mean the knowledge or belief a 

prudent person should have without making an investigation, including any investigation of public records, 

except that when the landlord has specific information 

indicating that such an investigation would more probably than not reveal pertinent information and the cost 

of such an investigation would be reasonable in relation 

to the probable value of the personal property involved, 

reasonable belief shall include the actual knowledge or 

belief a prudent person would have if such investigation 

were made.

Under this definition, IOC’s imputed reasonable belief would 

include the actual knowledge or belief that “a prudent person” 

would have if an investigation were made. It is an objective 

rather than a subjective standard.

Although Pan did initially inform Tompkins that Pan 

entered into an agreement with CNBA to sell his personal 

property, Tompkins was subsequently told on a number of 

occasions that Pan was the owner of this property. Pan sent 

numerous letters to Tompkins, including various affidavits 

and statements from CNBA stating that CNBA had no ownership right to the property. Tompkins admitted in his testimony 

26 See § 69-2307(1).
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at trial and in response letters to Pan’s attorney submitted 

as evidence at trial that he had received Pan’s letters and 

CNBA’s statements.

[5] All that is required under the Act is evidence that would 

lead a prudent person to believe the property belonged to 

the requesting party. The landlord need not know for certain that the party requesting the personal property owns 

it in order to be relieved from liability. IOC demanded 

more than what is required under the Act. IOC specifically 

requested a notarized affidavit and corporate resolution before 

it would agree to return Pan’s personal property. Although 

Pan sent multiple affidavits stating that CNBA disclaimed 

ownership in the property, IOC continued to refuse to return 

the property.

The district court implicitly found IOC’s belief the property belonged to CNBA to be unreasonable by determining 

that IOC withheld Pan’s personal property while knowing 

that Pan’s purchase agreement had not been completed in 

August 2014. In making this determination, the district court 

relied on correspondence between Pan and Tompkins in the 

aggregate. In the parties’ correspondence, Tompkins specifically conditioned the return of the property upon his receipt 

of written statements from CNBA disclaiming its ownership 

interest in the personal property at issue. The district court 

additionally stated that it relied on testimony disclosing the 

fact that Tompkins spoke to Pan regarding the failed sale of 

his business to CNBA in making its determination of property ownership.

IOC argues on appeal that the district court improperly 

relied upon inadmissible hearsay when it received into evidence certain attachments to the correspondence between Pan 

and Tompkins, specifically, exhibits 17 and 32, which were 

identified as affidavits from CNBA stating that it disclaimed 

any ownership in the personal property. We find no merit to 

IOC’s argument that the court improperly relied on hearsay in 

reaching its conclusion.
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Hearsay is a statement offered in evidence to prove the 

truth of the matter asserted.27 If an out-of-court statement is 

not offered for proving the truth of the facts asserted, it is not 

hearsay.28 The district court admitted exhibits 17 and 32 for the 

purpose of proving that Pan complied with IOC’s requests for 

proof that CNBA did not claim an ownership interest in the 

property. Regardless of the truth of the matter asserted in those 

exhibits, they form part of the surrounding circumstances that 

would lead a prudent person to believe that Pan was the owner 

of the personal property at issue.

The court also relied on testimony disclosing the fact that 

Tompkins spoke to Pan regarding the failed sale of his business to CNBA. Consequently, the district court found that IOC 

was aware that the property belonged to Pan as a result of 

the failed sale. Other relevant and properly admitted evidence 

included testimony from both Pan and Tompkins indicating 

that IOC at one point allowed Pan onto the premises to take 

some of the personal property, as well as an admission within 

IOC’s counterclaim stating Pan owns or claims ownership in 

the property.

The district court did not clearly err in finding that Pan was 

the owner of the personal property and, further, in its implicit 

finding that IOC’s belief the property belonged to CNBA was 

unreasonable. As such, the court did not clearly err when it 

held that IOC violated the Act by refusing to return Pan’s property upon his request.

(d) Storage Fees

IOC argues that it did not violate the Act, because § 69-2312 

requires the payment of reasonable storage fees when a landlord retains the personal property of a tenant. While this may 

be true, pursuant to § 69-2311(3), a demand for storage fees 

by a landlord must be in writing and mailed to the tenant 

27 Neb. Rev. Stat. § 27-801(3) (Reissue 2016).

28 State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011). 
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within 5 days of the landlord’s receipt of the tenant’s request 

for the return of personal property.

In this case, there is no evidence that IOC requested storage 

fees before the claim was filed against it. Rather, the first time 

storage fees were requested was in the counterclaim asserted 

in IOC’s answer. IOC did not request storage fees within the 

timeframe required by the Act. Accordingly, this court affirms 

the district court’s judgment rejecting IOC’s claim for storage fees.

4. Failure to Joi

Indispensable Par

IOC assigns as error on appeal that the district court erred 

in failing to add Chol; CNBA; and the Kleinschmits, doing 

business as Millard Electronics, as necessary and indispensable 

parties. This argument has no merit.

The code of civil procedure provides that if a determination of the controversy cannot be had without the presence of 

the parties, the court must order them to be brought into the 

litigation.29 Neb. Rev. Stat. § 25-323 (Reissue 2016) codifies 

the concept of compulsory joinder in Nebraska, stating in relevant part:

The court may determine any controversy between 

parties before it when it can be done without prejudice 

to the rights of others or by saving their rights; but when 

a determination of the controversy cannot be had without 

the presence of other parties, the court must order them to 

be brought in.

The first clause of this statute makes the inclusion of necessary 

parties discretionary when a controversy of interest to them 

is severable from their rights.30 However, the second clause 

29 Koch v. Koch, 226 Neb. 305, 411 N.W.2d 319 (1987).

30 Midwest Renewable Energy v. American Engr. Testing, 296 Neb. 73, 894 

N.W.2d 221 (2017).
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mandates the district court to order indispensable parties be 

brought into the controversy.31

[6] In Nebraska, it has long been held that an indispensable 

party is one whose interest in the subject matter of the controversy is such that the controversy cannot be finally adjudicated 

without affecting the indispensable party’s interest, or which 

is such that not to address the interest of the indispensable 

party would leave the controversy in such a condition that its 

final determination may be wholly inconsistent with equity and 

good conscience.32 Further, based on the distinction of parties 

in § 25-323, we have found that all persons interested in a 

contract or property involved in a suit to be necessary parties, 

and all persons whose interests therein may be affected by 

the decree in equity to be indispensable parties.33 As such, in 

order for a party to be indispensable or necessary, the threshold 

determination that must be made is whether the party has an 

interest in the subject matter of the controversy.

Here, none of the listed parties can be considered necessary or indispensable, because none of them claim or have 

a property interest in the subject matter of this controversy. 

Chol; CNBA; and the Kleinschmits, doing business as Millard 

Electronics, never asserted any ownership interest over the 

property at issue. In fact, CNBA made statements disclaiming 

ownership. Further, IOC acknowledged in its appellate brief 

that it received multiple statements from Panoam indicating 

that Pan was the sole owner of the property. Accordingly, we 

find that Chol; CNBA; and the Kleinschmits, doing business as 

Millard Electronics, are not necessary or indispensable parties 

to this action, because they do not assert any interest in the 

personal property involved in this dispute.

31 Id.

32 Id. See, also, American Nat. Bank v. Medved, 281 Neb. 799, 801 N.W.2d 

230 (2011); Koch v. Koch, supra note 29; Johnson v. Mays, 216 Neb. 890, 

346 N.W.2d 401 (1984).

33 Midwest Renewable Energy v. American Engr. Testing, supra note 30.
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5. Appropriate Reme

and Damag

IOC asserts that there was insufficient evidence to support 

the court’s award of damages and attorney fees under the Act. 

The Act, at § 69-2312, provides in pertinent part:

Any landlord who retains personal property in violation of the . . . Act shall be liable to the tenant in a civil 

action for:

(1) Actual damages not to exceed the value of the 

personal property if such property is not surrendered: (a) 

Within a reasonable time after the tenant requests surrender of the personal property . . . and

(2) Reasonable attorney’s fees and costs.

Because we have held that the Act applies in this case and that 

IOC violated the Act by unreasonably withholding Pan’s personal property, Pan is entitled to actual damages for the value 

of his property, as well as reasonable attorney fees.

[7,8] IOC asserts, specifically, that Pan failed to prove with 

a sufficient degree of certainty what the fair market value of 

his property was. We observe that in conversion actions, the 

fair market value of the property for the purposes of actual 

damages is calculated on the date of the unlawful taking, 

with interest accruing thereon.34 Further, “fair market value” 

is defined as the price that a seller is willing to accept and a 

buyer is willing to pay on the open market and in an arm’slength transaction.35 While this is not a conversion action, the 

remedial provisions within the Act are rooted in the theories 

of conversion by seeking to restore the status quo when a 

landlord improperly disposes of or withholds the property of a 

former tenant. In accordance with these holdings and the plain 

language of § 69-2312(1), we find that the phrase “value of the 

34 See NJI2d Civ. 4.27. See, also, Zelenka v. Pratte, supra note 9; HickmanWilliams Agency v. Haney, 152 Neb. 219, 40 N.W.2d 813 (1950); Oak 

Creek Valley Bank v. Hudkins, 115 Neb. 628, 214 N.W. 68 (1927).

35 Black’s Law Dictionary 1785 (10th ed. 2014).
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personal property” in its relation to “[a]ctual damages” is the 

fair market value of the property at the time the tenant’s property is improperly detained by the landlord.

[9] In reviewing a judgment awarded in a bench trial of a 

law action, an appellate court does not reweigh evidence, but 

considers the evidence in the light most favorable to the successful party and resolves evidentiary conflicts in favor of the 

successful party, who is entitled to every reasonable inference 

deducible from the evidence.36 Further, the amount of damages 

to be awarded is a determination solely for the fact finder, and 

its action in this respect will not be disturbed on appeal if it 

is supported by evidence and bears a reasonable relationship 

to the elements of the damages proved.37 With respect to damages, an appellate court reviews the trial court’s factual findings under a clearly erroneous standard of review.38

This court has long held that damages, like any other element of the plaintiff’s case, must be pled and proved and that 

the burden is on the plaintiff to offer evidence sufficient to 

prove the plaintiff’s alleged damages.39 Evidence of damages 

must be sufficient to enable the trier of fact to estimate actual 

damages with a reasonable degree of certainty and exactness.40

Proof of damages to a mathematical certainty is not required; 

however, a plaintiff’s burden of offering evidence sufficient 

to prove damages cannot be sustained by evidence which is 

speculative and conjectural.41

36 Mays v. Midnite Dreams, supra note 5.

37 Funk v. Lincoln-Lancaster Cty. Crime Stoppers, supra note 3.

38 Id.

39 See, Bedore v. Ranch Oil Co., 282 Neb. 553, 805 N.W.2d 68 (2011); Bass 

v. Boetel & Co., 191 Neb. 733, 217 N.W.2d 804 (1974).

40 ACI Worldwide Corp. v. Baldwin Hackett & Meeks, supra note 7; Lesiak v. 

Central Valley Ag Co-op, 283 Neb. 103, 808 N.W.2d 67 (2012); Bedore v. 

Ranch Oil Co., supra note 39; O’Connor v. Kaufman, 260 Neb. 219, 616 

N.W.2d 301 (2000).

41 ACI Worldwide Corp. v. Baldwin Hackett & Meeks, supra note 7.
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IOC argues that there was insufficient evidence presented on the issue of fair market value to justify the district 

court’s judgment awarding Pan $10,000 in actual damages, or 

approximately 50 percent of Pan’s evaluation of the property. 

We disagree.

At trial, several documents were received into evidence 

related to actual damages. These documents included bank 

statements and receipts for the personal property at issue, as 

well as an exhibit that contained an itemization of the property and Pan’s opinion as to its value. The itemization, along 

with the bank statements and receipts, including any oral 

testimony relevant to these documents, were not objected to 

by IOC.

It is well established in Nebraska that the opinion of a personal property owner is competent evidence of its value, solely 

because of his or her status as owner.42 Further, additional 

evidence was presented at trial to bolster the district court’s 

judgment on damages. This evidence included testimony from 

Pan discussing the purchase price of $30,000 pursuant to 

his purchase agreement with CNBA and testimony from witnesses from both sides opining as to the condition of the personal property.

In reviewing the district court’s award of $10,000 in damages, and considering the evidence in the light most favorable 

to the successful party while resolving evidentiary conflicts in 

favor of that party, we find that the district court’s award is 

not clearly erroneous. As a result, we affirm the district court’s 

valuation of damages.

[10,11] Concerning attorney fees, the Act explicitly awards 

a tenant reasonable attorney fees upon improper rejection 

of a request for the return of personal property by a landlord.43 In Nebraska, we have held that when an attorney fee 

42 See Peck v. Masonic Manor Apartment Hotel, 203 Neb. 308, 278 N.W.2d 

589 (1979).

43 § 69-2312(2).
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is authorized, the amount of the fee is addressed to the trial 

court’s discretion, and its ruling will not be disturbed on 

appeal absent an abuse of discretion.44 Judicial abuse of discretion exists when the reasons or rulings of a trial judge are 

clearly untenable, unfairly depriving a litigant of a substantial 

right and denying just results in matters submitted for disposition.45 An award of attorney fees involves consideration of 

such factors as the nature of the case, the services performed 

and results obtained, the length of time required for preparation and presentation of the case, the customary charges of the 

bar, and general equities of the case.46 If the contents of the 

record show the allowed fee not to be unreasonable, then that 

fee would not be untenable or an abuse of discretion.47

In this case, Pan produced evidence of his attorney fees by 

way of an affidavit by his attorney. This evidence was neither 

objected to nor argued against at the trial court level. The affidavit unambiguously details $14,151.49 in fees pursuant to the 

litigation of the case between Pan and IOC. Therefore, we find 

that the district court was within its discretion in awarding Pan 

$10,000 in attorney fees.

VI. CONCLUSION

For the reasons stated above, the lower court’s decision in 

this case is affirmed.

Affirm

44 ACI Worldwide Corp. v. Baldwin Hackett & Meeks, supra note 7.

45 Id.

46 Id.

47 See Garza v. Garza, 288 Neb. 213, 846 N.W.2d 626 (2014) (citing 

Boamah-Wiafe v. Rashleigh, 9 Neb. App. 503, 614 N.W.2d 778 (2000)).