On appeal from The La Porte Superior Court ">

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Date: 03-10-2022

Case Style:

Megan Rose v. Cole L Winters

Case Number: 21A-SC-1390

Judge: Melissa S. May



On appeal from The La Porte Superior Court

Plaintiff's Attorney:

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Defendant's Attorney: Cory A. Shoffner
Brody B. Shoffner


Indianapolis, IN - Lawyer represented Defendant in a small claims court dispute over a dog named Krato

Between August 2016 and August 2019, Rose and Winters were involved in an
on-again, off-again romantic relationship. On February 15, 2019, Rose and
Winters went to the Lakeshore PAWS animal shelter. Winters filled out
paperwork to adopt a dog that they later named Krato; Rose was listed on the
application as an emergency contact. Rose, Winters, and Krato lived together
in Winters’ residence from April 2019 to August 2019.
[3] In August 2019, Rose moved out of Winters’ residence. Krato remained
primarily with Winters, but from August 2019 to November 2019, Winters
allowed Rose to care for Krato in twenty-four-hour increments while he worked
as a firefighter. In November 2019, Winters allowed Rose to care for Krato for
five days while he was working, and then Winters would have Krato for the
four days he was not working. Rose explained Winters “works every other day,
so he would work one day on twenty-four hours, the next day he would be off,
the next day he’s on and that schedule continues for a five-day period. After
Court of Appeals of Indiana | Memorandum Decision 21A-SC-1390 | January 28, 2022 Page 3 of 16
that, he has four days off and that’s when he received the dog.” (Tr. Vol. II at
[4] Winters testified that, in December 2019, Rose “[r]egistered and microchipped”
Krato, (id. at 11), and that “she had registered his micro-chip in her name[.]”
(Id. at 13.) Winters also testified that Rose told him “that she had gone to a
psychiatrist . . . and that she was deemed mentally unstable and needed [Krato]
as an emotional support animal.” (Id.) Around the same time, Rose refused to
release Krato to Winters’ care unless Winters signed a note indicating Rose
could visit Krato on December 24, 2019. Winters testified he signed the note.
[5] On December 24, 2019, Winters requested Rose sign a similar document before
he would release Krato to her as previously scheduled. She did not respond to
his request. When Rose arrived at Winters’ residence to retrieve Krato on
December 24, Winters testified he
received a phone call about 9:15 from [his] girlfriend stating that
the LaPorte City Police Department had knocked on the door
and that [Rose] was standing outside the chain link fence and
that the police officer urged [his girlfriend] to give the dog back to
[Rose]. And [his girlfriend] felt pretty pressured so she did[.]
(Id. at 14-5.)
[6] On December 27, 2019, Winters filed a notice of claim asking the small claims
court to declare him Krato’s owner. The small claims court held an initial
hearing on February 7, 2020, and set a bench trial for February 19, 2020. The
court held the bench trial as scheduled, during which Rose and Winters offered
Court of Appeals of Indiana | Memorandum Decision 21A-SC-1390 | January 28, 2022 Page 4 of 16
testimony. On February 28, 2020, issued its order declaring Winters the owner
of Krato.
[7] On March 6, 2020, Rose filed a motion to correct errors in which she alleged
Winters had not been truthful in his testimony during the bench trial and
reasserted many of her arguments made during the bench trial. Due to several
COVID-19-related continuances, the small claims court held a hearing on
Rose’s motion to correct error on June 4, 2021. On June 9, 2021, the small
claims court issued its order denying Rose’s motion to correct error.
Discussion and Decision
1. Denial of Motion to Correct Errors
[8] We generally review a trial court’s ruling on a motion to correct error for an
abuse of discretion. Ind. Bureau of Motor Vehicles v. Watson, 70 N.E.3d 380, 384
(Ind. Ct. App. 2017). An abuse of discretion occurs if the trial court
misinterpreted the law or if the court’s ruling is against the logic and effect of
the facts and circumstances before it. Id. Our review of the small claims court’s
ruling on Rose’s motion to correct error necessarily involves review of the
underlying order. See In re Paternity of H.H., 879 N.E.2d 1175, 1177 (Ind. Ct.
App. 2008) (review of motion to correct error includes review of underlying
[9] “Our standard of review in small claims cases is particularly deferential in order
to preserve the speedy and informal process for small claims.” Heartland
Court of Appeals of Indiana | Memorandum Decision 21A-SC-1390 | January 28, 2022 Page 5 of 16
Crossing Found. Inc. v. Dotlich, 976 N.E.2d 760, 762 (Ind. Ct. App. 2012). We do
not reweigh the evidence; nor do we assess the credibility of the witnesses. Id.
However, the burden of proof in a small claims civil lawsuit is the same as the
burden in a civil action not on the small claims docket. Harris v. Lafayette
LIHTC, LP, 85 N.E.3d 871, 876 (Ind. Ct. App. 2017). The party bearing the
burden of proof must demonstrate it is entitled to the recovery sought. Id. We
will affirm a judgment in favor of the party bearing the burden of proof “if the
evidence was such that from it a reasonable trier of fact could conclude that the
elements of the party’s claim were established by a preponderance of evidence.”
Eagle Aircraft, Inc., v. Trojnar, 983 N.E.2d 648, 657 (Ind. Ct. App. 2013).
[10] A small claims court is not required to enter special findings. Wynne v. Burris,
105 N.E.3d 188, 192 (Ind. Ct. App. 2018). However, where “a small claims
court elects sua sponte to enter findings and conclusions, they aid our review by
providing us with a statement of the reasons for the trial court’s decision.” Id.
at 192-193 (emphasis in original). Nonetheless, we evaluate the “evidence in
the light most favorable to the judgment, together with all reasonable inferences
to be drawn therefrom. We will reverse a judgment only if the evidence leads to
only one conclusion and the trial court reached the opposite conclusion.” Id. at
193 (internal quotation marks omitted). We accept the small claims court’s
unchallenged findings as correct. See Madlem v. Arko, 592 N.E.2d 686, 687 (Ind.
1992) (“Because Madlem does not challenge the findings of the trial court, they
must be accepted as correct.”).
Court of Appeals of Indiana | Memorandum Decision 21A-SC-1390 | January 28, 2022 Page 6 of 16
[11] Rose argues the small claims court erred when it determined Winters was
Krato’s owner because Rose presented sufficient evidence that Winters gave
Krato to Rose as a gift. The elements of a gift inter vivos is well-settled:
A gift inter vivos of personal property or a chose in action is a
voluntary act of transferring the right to and the possession of
such chattel or chose in action whereby one person renounces
and another acquires the immediate right and title thereto. An
agreement, intention, or promise to make a gift effective in the
future is void as being without consideration. To make a valid
gift inter vivos there must be both an intention to give and a
stripping of the donor of all dominion or control over the given
thing and a change of title must be irrevocable. Words alone,
unaccompanied by the delivery of immediate possession, are not
sufficient to constitute a gift inter vivos, except where the gift is
already in the possession of the donee. The transfer must be so
complete that, if the donor again attempts to assume control of
the property, without the consent of the donee, he becomes liable
as a trespasser.
Kraus v. Kraus, 235 Ind. 325, 330, 132 N.E.2d 608, 610-1 (1956). Dogs are
considered personal property. Lachenman v. Stice, 838 N.E.2d 451, 467 (Ind. Ct.
App. 2005), reh’g denied, trans. denied.
[12] In determining Winters was Krato’s owner, the trial court found:
6. WINTERS claims ownership of KRATO by virtue of the
original purchase. In support thereof, Plaintiff’s Exhibit #1 is a
document entitled, ADOPTION AGREEMENT dated
02/15/19, at which time KRATO (formerly known as Swish)
was acquired from Lakeshore PAWS Organization in
Valparaiso, Indiana. Said ADOPTION AGREEMENT
identifies the adopter as Mr. Cole Winters of LaPorte, Indiana,
Court of Appeals of Indiana | Memorandum Decision 21A-SC-1390 | January 28, 2022 Page 7 of 16
and identifies and [sic] Emergency Contact of Megan Rose. The
Adopter, and the Receipt for payment in the amount of $110.00
is in the name of Plaintiff, Cole Winters.
7. WINTERS has established a prima facia [sic] case that as
between WINTERS and ROSE, he was the original owner of
8. ROSE bases her claim for ownership of KRATO upon an
allegation that WINTERS made a gift of KRATO from him to
9. In order for ROSE to prevail on her claim that WINTERS
made gift of KRATO to her after WINTERS originally adopted
KRATO, the burden of proof is on ROSE to establish with a
preponderance of evidence the legal elements of a gift.
10. In order to establish that WINTERS made an inter vivos gift
of KRATO to ROSE, ROSE must prove WINTERS’ voluntary
act of transferring the right and possession of KRATO whereby
WINTERS has renounced and ROSE has acquired the
immediate right and title of KRATO.
11. In order to establish an inter vivos gift, ROSE must establish
that the gift was immediate and absolute and that WINTERS’
intent to make the gift was immediate and permanent with actual
delivery of possession without which title does not pass.
12. ROSE also claims that she should be declared owner of
KRATO for the reason that she requires the dog as an emotional
support animal which is neither an element of nor consistent with
the claim of a gift.
Court of Appeals of Indiana | Memorandum Decision 21A-SC-1390 | January 28, 2022 Page 8 of 16
13. The Court finds that based upon the evidence presented, the
testimony of the parties and the conduct of the parties, ROSE has
failed to establish with a preponderance of the evidence that
WINTERS did, in fact, make a gift of KRATO to her.
(App. Vol. II at 12-3) (internal case citations omitted).
[13] Rose likens the facts of this case to those of Brackin v. Brackin, 894 N.E.2d 206
(Ind. Ct. App. 2008). In that dissolution action involving a prenuptial
agreement, the husband, William, appealed the award of an automobile to the
wife, Peggy, as part of the trial court’s dissolution order. Id. at 207. At some
time during their marriage, William bought Peggy a Buick Lucerne. Id. at 208.
William titled the car in both his and Peggy’s names. Id. When William
purchased the Lucerne, he “drove the Lucerne home, went into the house and
said, ‘Peggy, come out and see the car I bought you.’” Id. (internal citation to
the record omitted).
[14] Peggy was the primary driver of the Lucerne, though William drove it on
occasion, both alone and with Peggy as his passenger. During an argument,
William used a hammer “and repeatedly struck the door handle of the Lucerne
until the handle fell off.” Id. Peggy replaced the missing handle at her own
expense. In its dissolution order, the trial court determined the Lucerne was a
gift from William to Peggy based on William’s actions of presenting the car to
Peggy, Peggy’s primary use of the Lucerne, and the incident during which
William damaged the Lucerne. Id. at 209. Regarding that incident, the trial
court found:
Court of Appeals of Indiana | Memorandum Decision 21A-SC-1390 | January 28, 2022 Page 9 of 16
It lacks the ring of truth for [William] to assert that in the exercise
of an outward act of anger against [Peggy], for what he perceived
to be some insult by [Peggy], that [William] would take a
hammer and damage what he considered to be his own property.
Such an explanation defies human nature and the life experiences
of the court. When someone is getting even by means of
damaging property, they damage the property of their antagonist,
not their own.
[15] William appealed and argued the Lucerne was joint marital property because
his name was on the title of the Lucerne. Id. Applying the elements of an inter
vivos gift, our Court reasoned:
There is no evidence in the record suggesting that William was
not competent to make a gift. Similarly, there is no evidence to
suggest that the gift was incomplete or conditional. It reasonably
can be inferred that William effectively delivered the Lucerne to
Peggy and that she accepted the gift because Peggy regularly
drove the Lucerne and considered it her own. Additionally,
William’s statement, “Peggy, come and see the car that I bought
for you,” supports an inference that William intended to make a
Id. at 210. However, the trial court noted that while the fact that William left
his name on the Lucerne’s title would seem to indicate the transaction involving
the Lucerne did not strip him of all dominion and control over the vehicle,
where . . . there is uncontroverted evidence of clear and decisive
words of gift and an absence of any evidence to negate donative
intent, such evidence clearly and convincingly establishes
Court of Appeals of Indiana | Memorandum Decision 21A-SC-1390 | January 28, 2022 Page 10 of 16
donative intent despite the presumption to the contrary created
by the donor retaining his name on the certificate of title.
Id. at 212. Based thereon, our Court affirmed the trial court’s award of the
Lucerne to Peggy. Id.
[16] Rose contends the same is true here – despite the fact that Winters’ name is on
the adoption application and Winters was granted adoption of Krato, Winters
gave Krato to Rose as a gift for Valentine’s Day 2019 and she was Krato’s
primary caregiver. However, Rose’s argument ignores the evidence that
Winters and Rose agreed to share custody of Krato after their romantic
relationship ended. When Rose moved out of Winters’ residence, Krato
remained with Winters. Shortly thereafter, Winters allowed Rose to care for
Krato while he was at work because he worked twenty-four hour shifts as a
firefighter. Eventually, Winters and Rose agreed that Krato could stay with
Rose for five days while Winters worked and then Krato would live with
Winters for four days when he was not working. The evidence indicates that,
while Winters recognized Rose’s interest in caring for Krato, he did not intend
to relinquish dominion and control over Krato as to fully establish the donative
intent required for an inter vivos gift. Rose’s alternate version of the facts is an
invitation for us to reweigh the evidence, which we cannot do. See Heartland
Crossing, 976 N.E.2d at 762 (appellate court does not reweigh evidence or judge
the credibility of witnesses). The small claims court did not err when it
determined Winters did not complete an inter vivos gift of Krato to Rose and
thus Winters was Krato’s owner. See Hopping v. Wood, 526 N.E.2d 1205, 1207
Court of Appeals of Indiana | Memorandum Decision 21A-SC-1390 | January 28, 2022 Page 11 of 16
(Ind. Ct. App. 1988) (daughter’s unrestricted access to bank safe deposit box did
not constitute inter vivos gift because mother, who could revoke daughter’s
access at any time, did not completely relinquish control over the safe deposit
box), reh’g denied, trans. denied.
2. Admission of Evidence
[17] Rose argues she was not given her constitutionally protected “opportunity to be
heard” when the small claims court did not allow her to present the testimony
of two witnesses. (Br. of Appellant at 13.) As in cases before a trial court,
admission of evidence in a small claims case is within the small claims court’s
discretion, “and the decision whether to admit evidence will not be reversed
absent a showing of manifest abuse of the trial court’s discretion resulting in the
denial of a fair trial.” Elrod v. Brooks, 910 N.E.2d 231, 233 (Ind. Ct. App. 2009).
When a constitutional violation is alleged, we review that claim de novo.
Crabtree v. State, 152 N.E.3d 687, 696 (Ind. Ct. App. 2020), trans. denied.
[18] Here, the small claims court allowed Rose and Winters to testify regarding their
version of the events. The trial court then asked Winters to declare any other
witnesses he wished to present and indicate what they would testify to. Winters
dialogued with the court:
[Winters]: First off would be Shannon Garrison would be for
the 24th for the exchange. And that would be her talking about
what happened that day.
[Court]: Okay, I don’t think that’s a critical issue. I think I have
a good idea.
Court of Appeals of Indiana | Memorandum Decision 21A-SC-1390 | January 28, 2022 Page 12 of 16
[Winters]: Okay. Several days after February 7th her dad
approached my dad, they work at LaPorte County EMS, and
offered to pay for the dog. He said . . . he stated that is there
anything I can do to resolve this, can I pay you for the dog. My
dad can testify to that. Chip Winters, he’s here.
[Court]: Alright, well that’s one dad and another dad.
[Winters]: Exactly, I understand that, but . . .
[Court]: Anyone else that you would want to call?
[Winters]: My other witness would just be to the talk about the
time where she did stay at the house and how absent she was.
She was never around, that’s the problem and so I was the sole
caretaker of the dog. I played with him, I did everything with
him. She was out with her friends, or whatever she was doing.
You know, that’s not here or there.
[Court]: What period time we talking about there?
[Winters]: That was the entire time that she lived . . . so from
April when she moved into my house to August.
[Court]: Alright.
[Winters]: And he can witness that, he can testify to that.
[Court]: Well you can testify to it, and you just did.
(Tr. Vol. II at 58-9) (errors in original). The court asked Rose the same
question and she dialogued with the court:
Court of Appeals of Indiana | Memorandum Decision 21A-SC-1390 | January 28, 2022 Page 13 of 16
[Court]: Alright, and for you, what other witnesses would
you call and what would they testify to?
[Rose]: Yes. My initial two witnesses are my mother and
father, Jeff and Jody Rose. And they would be stating that they
heard Cole say Krato was a gift for me, that he did not like the
breed pit bull and that he did not like rescue animals and that it
was made clear in their home during the foster period of time
that Krato was a gift for me.
[Court]: Okay, I’m going to let you call one of your
witnesses. I’m going to let you cross-examine them.
[Winters]: Okay.
[Court]: I’m going to let you call one of your parents to
testify on the issue of their understanding of the dog being a gift.
So pick which one you want, or which one wants to.
(Id. at 59-60.) Rose’s father took the stand and testified that he heard Winters
say he was adopting Krato as a gift to Rose. The court then asked Rose if she
had any other witnesses and she dialogued with the court:
[Rose]: Yes, I have Grace who has been my best friend for
years and she was at the house on numerous occasions while
Cole was at work. When he wasn’t around and she witnesses me
being the main provider and sole caretaker of the dog and she
would witness that.
[Court]: Okay, you’ve testified to that.
[Rose]: Okay.
Court of Appeals of Indiana | Memorandum Decision 21A-SC-1390 | January 28, 2022 Page 14 of 16
[Court]: We are limited in time and it’s good of all these
folks to come and be supportive and be available to testify. As
far as I’m concerned you two are the ones that are the main
witnesses. What other witnesses would you have and what
would they testify to?
[Rose]: The only other witness that I would have is my
current boyfriend, Justin Biller, who now I live with and he can
testify to me taking complete care of the dog. Cole has
mentioned in his statements that I didn’t take care of the dog and
I do have two witnesses that would say that I did take care of the
dog fully and that I can be the sole owner and caretaker of the
dog and I’m physically able to provide for him.
[Court]: I don’t think the ability, as far as I’m concerned,
that has not been put into question. So, I didn’t know if you
intended it or not, but I’ve not heard anything that tells me that
you shouldn’t have the dog because you’re not capable. So that’s
not an issue for me, so you wouldn’t need somebody to testify
that . . . to convince me of it, because I don’t find that to be an
(Id. at 64-5.) As there was no more testimony to be heard, the court allowed the
parties to summarize their arguments.
[19] Rose consistently testified throughout the hearing that she believed Winters
gave her Krato as a gift and, thus, she was Krato’s owner. Rose also testified
she was Krato’s main caretaker, and she offered into evidence statements
indicating she took Krato to the veterinarian and pictures of Rose and Krato
together. As cited supra, Rose told the court that her mother would testify that
Winters gave Krato to Rose as a gift and that Grace would testify that Rose was
Court of Appeals of Indiana | Memorandum Decision 21A-SC-1390 | January 28, 2022 Page 15 of 16
Krato’s main caretaker. The testimony of Rose’s mother and Grace would
therefore have been cumulative, and thus any error the small claims court made
in denying Rose’s request to present that evidence is harmless. See Spaulding v.
Harris, 914 N.E.2d 820, 830 (Ind. Ct. App. 2009) (“Where wrongfully excluded
testimony is merely cumulative of other evidence presented, its exclusion is
harmless error.”), trans. denied. Moreover, because any error in the exclusion of
the witnesses was harmless, Rose cannot demonstrate she was denied a fair trial
for purposes of a Due Process analysis. See, e.g., Woodford v. State, 544 N.E.2d
1355, 1358 (Ind. 1989) (harmless error does not constitute a due process

Outcome: Any error made by the small claims court when it denied Rose’s request to
present her mother and her friend, Grace, as witnesses was harmless because
their testimony would have been cumulative of Rose’s earlier testimony. As a
result, her “right to be heard” was not violated. Further, the small claims court
did not err when it determined Winters was Krato’s owner because Rose had
not demonstrated by a preponderance of the evidence that Winters gave Krato
to Rose as a gift. Accordingly, Rose has not demonstrated the small claims
court abused its discretion when it denied Rose’s motion to correct errors, and
we affirm.


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