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Koerner v. Nielsen

Court of Appeals of Illinois, First District, First Division

March 17, 2014

JENNIFER L. KOERNER, Plaintiff-Appellant,
v.
KENT C. NIELSEN, Defendant-Appellee

Appeal from the Circuit Court of Cook County. No. 12 M1 500484. Honorable Eileen O'Neil Burke, Judge Presiding.

Affirmed.

SYLLABUS

The trial court's finding that plaintiff's gift of a dog to defendant made him the dog's rightful owner was affirmed, notwithstanding the facts that plaintiff's name was still on the dog's registration papers, the dog's insurance policy and the dog's microchip identification, since the need for physical delivery of the dog to defendant was obviated by the parties' cohabitation at the time the dog was given to defendant, and based on the evidence presented by defendant, he continued to be the dog's owner after the parties' romantic relationship ceased and defendant moved out and took the dog.

Jennifer L. Koemer, Appellant, Pro se, Chicago, Illinois.

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Connors and Justice Hoffman concurred in the judgment and opinion.

OPINION

CUNNINGHAM, JUSTICE

Page 162

[¶1] Plaintiff-appellant, Jennifer Koerner (Koerner), appeals from an order of the circuit court of Cook County which found that she had given the dog at issue (the Stig) to defendant-appellee, Kent Nielsen (Nielsen), as a gift and that he was thus its rightful owner. On appeal, Koerner contends that the trial court erred in finding that: (1) an inter vivos gift had occurred; (2) she had not revoked the gift prior to delivery; and (3) the burden of disproving a completed inter vivos gift lies with the party challenging the gift. She thus requests that this court reverse the trial court's judgment and enter an order stating that she is the Stig's rightful owner. Although Nielsen has not filed a brief in response, we will consider the appeal pursuant to the principles set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128, 131-33, 345 N.E.2d 493 (1976). For the following reasons, we affirm the judgment of the circuit court of Cook County.

[¶2] BACKGROUND

[¶3] The record shows that on November 5, 2010, Koerner adopted the Stig from the Anti-Cruelty Society in Chicago, Illinois, and used her credit card to pay the $95 fee. On or about December 25, 2010, Koerner wrote a poem in which she expressed her intent to give the Stig to Nielsen, her then live-in boyfriend, as a gift. A copy of the poem is not included in the record on appeal.

[¶4] The record further shows that Koerner and Nielsen ended their relationship in early February 2012. Nielsen permanently left their shared residence on February 6, 2012, taking the Stig with him, and, that same day, Koerner filed a police report in relation to the incident. The record further shows that throughout February and March 2012, Koerner and Nielsen exchanged emails relating to the logistics of their separation. In those emails, Koerner repeatedly stated that she and Jessie, her dog, missed the Stig and asked Nielsen to bring the Stig " home." Nielsen repeatedly responded that the Stig belonged to him, but that he would allow the Stig to visit Koerner and Jessie, so long as Koerner confirmed in writing that he had " total ownership" of the Stig. On April 20, 2012, Koerner filed a complaint against Nielsen in the circuit court of Cook County, alleging that she is the Stig's rightful owner and seeking his return.

[¶5] On August 21, 2012, a bench trial commenced in this case and was continued to September 11, 2012. No court reporter was present on either day, so Koerner prepared and filed an affidavit bystander's report (Bystander's Report) pursuant to Illinois Supreme Court Rule 323 (eff. Dec. 13, 2005). Although Nielsen did not take part in creating the Bystander's Report, Koerner represented in her motion to certify that he was served with the proposed report and did not oppose it or submit any proposed amendments. The Bystander's Report was certified by the trial court on March 11, 2013, and entered as a supplement to the record on appeal.

[¶6] The Bystander's Report reflects that at trial, Koerner maintained that she is the true owner of the Stig because the donative intent she expressed in the poem was subsequently revoked both verbally and in writing in February 2012, ...


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