Nebraska Supreme Court Decides Gay Man Gifted Dog, “Princess Pot Roast,” to His Partner Prior to Their Break-up

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By Arthur S. Leonard. This article appears in the Summer Issue of LGBT Law Notes, the most comprehensive monthly publication covering the latest legal and legislative developments, here and abroad. Subscribe:

Nowhere in Justice Stephanie Stacy’s opinion in Zelenka v. Pratte, is there any mention of the monetary value of any of the items in dispute, but one suspects that a reason this ended up being a case litigated to the Nebraska Supreme Court was that “Princess Pot Roast,” a/k/a “Pavlov,” is a valuable show dog. In any event, Pavlov appears to be pedigreed, which suggests as much, and is described as a French bulldog.

The dispute is between Peter Zelenka and Jason D. Pratte, who were involved in a “romantic relationship from 2010 until 2015” and “lived together in a house owned by Pratte from July 2011 until they separated in June 2015.” Zelenka moved out and “took only a few items of personal property with him, believing the move was temporary to allow the parties to work on their relationship,” but he evidently misjudged Pratte’s feeling on the matter, since when he returned the following week, he discovered Pratte had changed all the locks and Zelenka was unable to retrieve items of personal property he claimed to be his, as well as Pavlov.

Zelenka sued Pratte in Douglas County District Court, alleging conversion of his property and seeking its return. Pratte filed a general denial. Justice Stacy expends some paragraphs discussing whether the action should more properly have been styled as one for replevin, since Zelenka was allegedly seeking the return of his own property allegedly wrongfully held by Pratte, but in the end it did not make any difference how the cause of action was named. Zelenka wanted his stuff and his dog back, not damages.

Douglas County District Judge Kimberly Miller Pankonin held a bench trial in January 2017. Jill M. Mason of Kinney Mason, P.C. (Omaha), represented Zelenka, and Ryan J. Lewis and Thomas C. Dowart of Govier, Katskee, Suing & Maxell, P.C. (Omaha), represented Pratte. (We rather fancy an attorney with the surname Suing — that is, assuming that Suing usually represents plaintiffs — but in this case the firm is representing the defendant!)

The most hotly contested issue was the ownership of Pavlov, as to which the parties’ testimony was supplemented by that of Zelenka’s mother and the dog breeder. Zelenka contended that Pratte purchased Pavlov as a birthday gift for Zelenka. Pratte contended that the dog was purchased to be a companion dog to Pratte’s Labrador retriever. There was no dispute that Pratte paid for the dog. Zelenka testified that “several weeks before his birthday, Pratte surprised him by taking him to a local dog breeder to pick out a puppy as a birthday gift” and that he selected one out of the litter that was available from the breeder and named it “Pavlov.” Zelenka came back to the breeder some days later to pick up the puppy that Pratte had purchased. According to the breeder’s testimony, when Pratte contacted her to arrange to visit, he said “he was looking for a puppy as a gift for his boyfriend.” According to the breeder, after Zelenka made his selection, she had the puppy spayed and microchipped at a local veterinary clinic, after which Zelenka returned alone to pick up Pavlov. At that time, she provided him with the adoption contract, registration forms for the American Kennel Club, and photographs of the puppy (from which this writer deduces the puppy is pedigreed and potentially a show dog and thus probably more valuable than a “mere” pet). The breeder’s testimony confirmed Zelenka’s claim that Pavlov was bought by Pratte as a birthday gift for Zelenka.

Zelenka’s mother also testified that Pavlov was a birthday gift from Pratte. “When asked how she knew the puppy was a birthday gift, Zelenka’s mother testified that Pratte told her so.”

Pratte’s story was that he did not intend to buy Pavlov as a gift, and that before he brought Zelenka to see the litter, he had visited the breeder to “assess whether any of her puppies would be a good companion for his dog,” and that he had narrowed the options before bringing 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.”

Judge Pankonin found the testimony offered in support of Zelenka’s claim to be more credible than Pratte’s testimony, and ordered Pratte to surrender Pavlov within 48 hours. As to the various other items of personal property, the judge found Zelenka had failed to meet his burden of proof and ordered that the property remain with Pratte.

Both parties appealed. Justice Stacy provides a description of the law of gifts under Nebraska’s common law. She outlines the essential elements of donative intent, delivery and acceptance, and the requirement that “the person asserting the gift must prove all the essential elements by clear, direct, positive, express, and unambiguous evidence.” Here, she found, there was “clear and unmistakable evidence of Pratte’s donative intent” from the testimony of Zelenka, Zelenka’s mother and the dog breeder, which the trial judge found to be more credible than Pratte’s testimony that he never intended a gift. As to the other elements, Justice Stacy wrote, “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. But in this case, the breeder, not Pratte, had dominion and control over Pavlov before the gift was made. We have recognized that delivery can take place through a third party, 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.”

The court rejected Pratte’s argument that because the dog resided in Pratte’s house, Zelenka’s “dominion” was not established, stating that “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. 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.”

Although the Supreme Court thus rejected Pratte’s appeal of the decision concerning Pavlov, it found that some of Judge Pankonin’s other rulings had to be reversed in response to Zelenka’s cross-appeal. It turned out that Zelenka had shown by uncontroverted evidence that he had purchased some of the items in question, and he testified he purchased them for his own use, not as gifts for Pratte. Pratte claimed that all the items had been gifted to him, but, wrote Justice Stacy, “Pratte offered no evidence going to the essential elements of donative intent, acceptance or delivery,” and thus the district court erred in finding Zelenka failed to meet his burden of proof, since in fact the burden of proof of establishing the elements of a gift falls on the person asserting that the property in question was a gift. The default assumption is that the person who bought it owned it.

As to a leather couch, in particular, Pratte was relying on a printout from a social media post he made including a photograph of “a fully furnished living room with a leather couch, side chairs, a coffee table, an entertainment center, and related furnishings.” (This was marked exhibit 27.) Pratte had captioned the post: “Early birthday surprise!!! Check out this amazing f**cking living room!!! Love you Peter Zelenka.” The responses to this post included one from Zelenka: “Its [sic] not quite finished but its [sic] a good start.” Pratte argued that this supported his claim the couch was a gift to him. But, contrary to the trial court, the Supreme Court concluded this evidence was not sufficient to establish a gift. “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 acceptance’ regarding the leather couch.”

Ultimately, the Supreme Court concluded that Pratte should have to return several lamps and the leather couch to Zelenka. However, as to the other personal property claimed by Zelenka, the Supreme Court would not overturn the trial judge’s resolution as to contradictory testimony about who purchased the other items. “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. 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.”

We thought it interesting that although the court used the term “adopt” regarding the transfer of ownership of Pavlov from the breeder to Zelenka, there is no mention in the court’s decision about whether there was documentary evidence regarding the “adoption.” Did Zelenka never file the registration form with the American Kennel Club identifying himself as the owner of Pavlov? If he had, one would think the document would be entered in evidence and mentioned by the court, as tending to confirm Zelenka’s claim that although Pratte paid for the dog, Zelenka was the registered owner. It is also interesting — again reflecting on the word “adopt” rather than “sell” — that there is no discussion about whether confirming ownership in Zelenka is in the “best interest” of Pavlov. We are reminded of some litigation over the ownership of a dog between former gay partners that took place in New York, in which the trial judge initially decided that the “best interest of the dog” should be taken into account, but ultimately concluded that ordinary principles of property law should apply. That was also a case in which one of the men contended the dog had been a gift to him from his former partner. Ultimately the court decided they were joint owners and should negotiate a settlement. But there are other New York cases suggesting that although dogs are not children, nonetheless they are not inanimate property and it would be appropriate for a court to consider what is in the best interest for all concerned, taking into account the welfare of the dog, in resolving such a dispute. Who could assert the better ownership claim under property law would not necessarily be dispositive in a jurisdiction taking that approach.

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