Pan v. IOC Realty Specialist
301 Neb. 256
| Neb. | 2018Background
- Samuel Pan operated a daycare under a lease at a commercial property managed by IOC Realty Specialist (IOC) and its sole shareholder Bernard Tompkins; Pan sold the business to CNBA in an attempted transaction but the sale failed and Pan retained ownership of many personal property items on the premises.
- CNBA occupied the premises briefly, defaulted on rent, was evicted, and IOC changed locks and later permitted a new lessee to use some of the larger items; IOC moved some items to a warehouse it managed.
- Pan repeatedly requested return of his personal property, provided affidavits from CNBA disavowing ownership, and sent counsel’s demand letters; IOC refused unless Pan produced additional corporate documentation or an indemnity.
- Pan sued under the Disposition of Personal Property Landlord and Tenant Act (the Act) seeking return/value of property and attorney fees; IOC counterclaimed for storage fees.
- After a bench trial the district court found IOC (and Tompkins) violated the Act, awarded Pan $10,000 in actual damages (about 50% of his claimed valuation) plus $10,000 in attorney fees, and dismissed IOC’s storage-fee claim.
Issues
| Issue | Plaintiff's Argument (Pan) | Defendant's Argument (IOC) | Held |
|---|---|---|---|
| Does the Act apply to commercial leases? | Act applies broadly to any premises; commercial tenants are protected. | Act is intended for dwellings and self-storage only; not commercial. | The Act applies to commercial leases; listing of storage/dwelling is nonexclusive. |
| Was IOC a “landlord” and Pan a “former tenant” under the Act? | IOC acted as landlord/agent; Pan was a prior tenant entitled to possession. | IOC contends it was merely agent and CNBA was the relevant former tenant. | IOC (and Tompkins) were within the Act’s definition of landlord; Pan was a former tenant. |
| Did IOC reasonably believe someone else (CNBA) owned the property, excusing refusal to return? | Pan produced affidavits and correspondence showing CNBA disclaimed ownership; a prudent person would believe Pan. | IOC demanded notarized corporate resolution and indemnity; its doubts were reasonable. | Objective “reasonable belief” standard not met; IOC unreasonably withheld property despite CNBA statements. |
| Were damages and attorney fees supported by evidence? | Owner’s valuation, bank records, receipts and testimony sufficed; attorney-fee affidavit supported award. | Valuation lacks certainty/expert proof; fees excessive. | Trial court’s damages ($10,000) and $10,000 attorney fee not clearly erroneous or an abuse of discretion. |
Key Cases Cited
- Whipps Land & Cattle Co. v. Level 3 Communications, 265 Neb. 472 (construction of statutory language principle)
- Funk v. Lincoln-Lancaster Cty. Crime Stoppers, 294 Neb. 715 (appellate review standards for damages and factual findings)
- Zelenka v. Pratte, 300 Neb. 100 (replevin vs. statutory damages; treating issues tried by consent)
- Timberlake v. Douglas County, 291 Neb. 387 (word “include” not limiting)
- ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818 (standards for attorney-fee awards and abuse of discretion)