Opinion
24A-SC-234
06-26-2024
Drake D. Rhodes, Appellant-Defendant v. Emily N. Clevenger, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Kirsten R. Andrews Hunt Suedhoff Kearney, LLP Fort Wayne, Indiana APPELLEE PRO SE Emily N. Clevenger Roanoke, Indiana
Appeal from the Allen Superior Court The Honorable Michael T. Douglass, Magistrate Trial Court Cause No. 02D01-2307-SC-5992
ATTORNEY FOR APPELLANT Kirsten R. Andrews Hunt Suedhoff Kearney, LLP Fort Wayne, Indiana
APPELLEE PRO SE Emily N. Clevenger Roanoke, Indiana
MEMORANDUM DECISION
Crone, Judge.
Case Summary
[¶1] Drake D. Rhodes appeals the small claims court's judgment awarding Emily N. Clevenger ownership of a dog that she testified was a birthday gift from Rhodes. We affirm.
Facts and Procedural History
[¶2] On July 5, 2023, Clevenger filed a pro se notice of claim alleging that Rhodes, her ex-boyfriend, had refused to give back her dogs, Finley and Rue. An evidentiary hearing was held on August 4, 2023. Clevenger appeared pro se, and Rhodes appeared in person and by counsel. Both parties testified and presented evidence. The small claims court took the matter under advisement.
[¶3] On November 2, 2023, the court entered a judgment that reads in relevant part as follows:
We have replaced "Plaintiff" and "Defendant" with "Clevenger" and "Rhodes" where appropriate.
2. Clevenger and Rhodes were involved in a relationship for three years and resided together until June 3, 2023, when Clevenger moved out of Rhodes's apartment.
3. Rhodes purchased two dogs during the period of the parties' relationship.
4. In January 2021, Rhodes purchased "Rue", who is now a two-year-old Belgian Malinois.
5. In October 2022, Rhodes purchased "Finley", who is now a one-year-old Golden Retriever.
6. When Clevenger moved out of Rhodes's residence, she intended to take the dogs with her but decided not to, at that time, in order to avoid any sort of verbal altercation. So, both dogs have been in Rhodes's possession since June 3, 2023.
7. Clevenger alleges that Rhodes gave her both dogs as gifts [and] is unlawfully detaining the animals.
8. When any personal goods, including tangible personal property constituting or representing choses in action, are wrongfully taken, or unlawfully detained from the owner or person[] claiming possession, or when taken on execution or attachment, are claimed by any person other than the defendant, the owner or claimant may bring an action for possession of the property. Ind. Code § 32-35-2-1.
9. A valid inter vivos gift - i.e., an absolute gift occurs when: (1) the donor intends to make a gift; (2) the gift is completed with nothing left undone; (3) the property is delivered by the donor and accepted by the donee; and (4) the gift is immediate and absolute. Shourek v. Stirling, 652 N.E.2d 865, 867 (Ind.Ct.App. 1995).
10. Both parties have paid for veterinary expenses, food, toys, and other items for both animals while they lived together -which is not uncommon when people cohabitate and have pets.
11. Both parties have deep emotional ties and affection to Rue and Finley. Clevenger and Rhodes have been fantastic owners of
both animals and both of them desire to have possession of both dogs as well.
12. Even though Rhodes paid for Rue, [t]his Court finds Clevenger's testimony that Rue was a gift from Rhodes credible and finds as such. Clevenger has met her burden of proof that Rue was an early birthday present or gift from Rhodes in January 2021. Rue is also microchipped in Clevenger's name.
13. However, Finley was purchased by Rhodes without the knowledge of Clevenger and was not intended to be a gift to Clevenger by Rhodes. Finley is not microchipped in Clevenger's name.
14. Clevenger is the rightful owner of Rue and is entitled to the return of Rue. 15. Rhodes is the rightful owner of Finley [and] is entitled to keep possession of Finley.
16. Judgment for Clevenger and against Rhodes for the immediate possession of the two-year-old Belgian Malinois -Rue.
17. Clevenger and Rhodes shall immediately coordinate a date and time in order for Rhodes to deliver Rue to Clevenger.
Clevenger shall have Rue in her possession on or before November 11, 2023 at 5:00PM.
18. If necessary the Sheriff of Allen County is ordered to enter Rhodes's premises . . . and seize the aforementioned personal property (Rue) and immediately deliver Rue to Clevenger.Appealed Order at 1-3.
"[A] dog is personal property[.]" Lachenman v. Stice, 838 N.E.2d 451, 467 (Ind.Ct.App. 2005), trans. denied (2006).
At the hearing on Rhodes's post-judgment motions, the court clarified that, from its perspective, "owners ... implies both dogs. One (1) dog and one (1) dog[.]" Motions Hearing Tr. Vol. 2 at 7.
In his motion to correct error, Rhodes asserted that he had recently learned that Clevenger registered the microchip, which was in place when Rue was purchased, on June 28, 2023, twenty-five days after their breakup and only seven days before the evidentiary hearing. He further asserted, "This newly discovered evidence is highly relevant as the Court's Order specifies that Rue's microchip registration was considered in determining ownership of Rue." Appellant's App. Vol. 2 at 83. The small claims court's denial of the motion to correct error indicates that the microchip finding was not an integral part of its judgment, and Rhodes has not convinced us otherwise. The fact remains that Rhodes could have registered the microchip himself but did not do so, and the registration form indicates that registration "does not signify ownership" in any event. Motions Hearing Ex. Vol. at 12.
[¶4] Rhodes filed a motion to correct error, a motion to enjoin Clevenger from alienating Rue "prior to the final resolution of this matter[,]" Appellant's App. Vol. 2 at 106, and a motion for attorney's fees based on allegations that Clevenger had litigated the action in bad faith. A hearing was held on January 22, 2024. At the conclusion of the hearing, the small claims court orally granted the motion to enjoin and took the other motions under advisement. The next day, the court issued a written order denying all three motions. Rhodes now appeals.
At the hearing, Clevenger testified and presented evidence to show that Rhodes did not deliver Rue until after the court-ordered deadline and that she enlisted the aid of two sheriff's deputies to facilitate the delivery.
Discussion and Decision
[¶5] "Our standard of review in small-claims cases is well settled. Small-claims court judgments are 'subject to review as prescribed by relevant Indiana rules and statutes.'" Vance v. Lozano, 981 N.E.2d 554, 557 (Ind.Ct.App. 2012) (quoting Ind. Small Claims Rule 11(A)). "Under Indiana Trial Rule 52(A), the clearly erroneous standard applies to appellate review of facts determined in a bench trial with due regard given to the opportunity of the trial court to assess witness credibility." Id. "A judgment is clearly erroneous when a review of the materials on appeal leaves us firmly convinced that a mistake has been made." Trisler v. Carter, 996 N.E.2d 354, 356 (Ind.Ct.App. 2013). We review questions of law de novo. Vance, 981 N.E.2d at 557-58.
[¶6] "In our review, we presume that the trial court correctly applied the law, and we will not reweigh the evidence or determine the credibility of witnesses but will consider only the evidence that supports the judgment and the reasonable inferences to be drawn therefrom." Trisler, 996 N.E.2d at 356. "This deferential standard of review is particularly important in small claims actions, where trials are informal, with the sole objective of dispensing speedy justice between the parties according to the rules of substantive law." Id. "We will reverse a judgment only if the evidence leads to but one conclusion and the trial court reached the opposite conclusion." Vance, 981 N.E.2d at 558.
[¶7] By separate order, we have granted Rhodes's motion to strike Clevenger's appellee's brief due to her failure to comply with the appellate rules. Therefore, we will disregard Clevenger's brief and review Rhodes's arguments as though she failed to file a brief. Where a party fails to file a brief, we may reverse upon a showing of prima facie error. Brower Corp. v. Brattain, 792 N.E.2d 75, 77 (Ind.Ct.App. 2003). "Prima facie means at first sight, on first appearance, or on the face of it." Id. (citation and quotation marks omitted). Nevertheless, the appellee's failure to file a brief does not relieve us of our obligation to correctly apply the law to the facts in the record to determine whether reversal is required. Vandenburgh v. Vandenburgh, 916 N.E.2d 723, 725 (Ind.Ct.App. 2009).
[¶8] Nearly a century ago, this Court reiterated the following well-settled principle: "It is not necessary, in order to accomplish a gift of personal property, that it be made in writing, but a valid gift can be made by parol, and no particular words are required to consummate it in that manner." Warner v. Keiser, 177 N.E. 369, 373 (Ind.Ct.App. 1931) (citing, inter alia, Devol v. Dye, 24 N.E. 246 (Ind. 1890)). A reasonable inference can be drawn from Clevenger's testimony that Rhodes made a parol gift here. See Evid. Hearing Tr. Vol. 2 at 7 ("Drake and I lived together for about three (3) years. And in that time he had gotten . . . Rue and Finley for me .. . as gifts."), 8 ("Rue was for, like a late birthday, well I guess early birthday present for me. My birthday is in February and we [got] her at the very end of January."), 29 ("Rue was handed to me when we went to go pick her up because, like I did state she was a gift for me..... I literally held her the entire, for almost four (4) hour drive home .. . from Michigan."). Rhodes testified to the contrary, but obviously the small claims court did not find his testimony credible. We may not second-guess that determination on appeal.
[¶9] As mentioned in the court's judgment, for an inter vivos gift to be valid, it must be "immediate and absolute." Appealed Order at 2 (quoting Shourek, 652 N.E.2d at 867). Rhodes argues that Clevenger failed to establish that his donation of Rue was absolute, noting that she testified that he purchased food and toys and contributed to paying veterinary bills. But, as the small claims court correctly noted, this "is not uncommon when people cohabitate and have pets." Id.
We are similarly unpersuaded by Rhodes's social media posts, in which he referred to Rue as "my dog," Evid. Hearing Ex. Vol. at 55-57, and the fact that he was the sole leaseholder of their apartment.
[¶10] Rhodes also points out that when he purchased Rue from the breeder, only he signed the breeding contract, which states in pertinent part,
The dog/puppy should reside with the buyer.
The buyer shall notify the breeder immediately if the dog cannot be kept by the buyer.
The dog shall not be sold, transferred or given to any individual or to any retail establishment for the purpose of resale.Appellant's App. Vol. 2 at 49. He further notes that he testified that he intentionally did not add Clevenger to the contract as a second buyer so that he "could [have] full rights to the dog at any time." Evid. Hearing Tr. Vol. 2 at 18.
[¶11] However, the small claims court could have drawn the reasonable inference that Clevenger did not sign the contract because she was not the actual buyer and that Rhodes intended to gift Rue to Clevenger notwithstanding his contractual obligations to the breeder. Our review of the small claims court's judgment has not left us firmly convinced that a mistake has been made, so we affirm it.
The same may be said for an American Kennel Club registration certificate, introduced at the postjudgment motions hearing, that lists Rhodes as Rue's "owner." Motions Hearing Ex. Vol. at 8. Clevenger testified that she "had asked [Rhodes] why couldn't [her] name go on that as well and he said there's only one (1) spot for a name and he bought her." Motions Hearing Tr. Vol. 2 at 14. Clevenger went on to say, "I've never argued that he didn't buy her. He absolutely did, but he bought her for me." Id. The small claims court believed this testimony, and we may not reassess its credibility determination.
We also affirm the court's denial of Rhodes's motion to correct error, motion to enjoin, and motion for attorney's fees. We have addressed the salient allegations in the motion to correct error above, and Rhodes cites no legal authority for overturning the ruling on his motion to enjoin. As for the motion for attorney's fees, Rhodes's claims of bad faith are based on either actions by Clevenger that had no bearing on the correctness of the original judgment or inferences drawn from Clevenger's testimony that are not favorable to the judgment, which we may not consider on appeal.
Affirmed.
Bradford, J., and Tavitas, J., concur.