965 N.W.2d 793
Neb. Ct. App.2021Background
- Sellers (the Beans) listed a house with broker Cindy Forehead (Ambassador). Forehead toured the property and received a seller disclosure stating no structural problems.
- Multiple prospective-buyer agents told Forehead they were concerned about settling/foundation; one buyer (Starkel) had RamJack perform a structural inspection and Boldt (his agent) emailed the RamJack report and estimates to Forehead; Forehead testified she did not open the attachments.
- Another pre-closing inspection by the Hinsons noted cracking and recommended contractor review; their retained engineer concluded nothing indicating significant structural issues; the Hinsons closed in Feb 2018 and later learned of the RamJack report.
- The Hinsons sued the Beans, Forehead, Ambassador, and others alleging nondisclosure of material structural defects. Claims against some defendants were later dismissed by stipulation; Forehead and Ambassador moved for summary judgment.
- The district court granted summary judgment for Forehead and Ambassador, ruling the seller’s agent must have actual knowledge of a material defect and that Forehead lacked such knowledge; the Court of Appeals reversed and remanded, finding genuine issues of material fact about Forehead’s knowledge and whether adverse facts were reasonably ascertainable to the Hinsons.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a seller’s agent must disclose "adverse material facts" actually known under §76-2417(3)(a) and whether that requires actual knowledge of a material defect | Hinsons: §76-2417(3)(a) requires disclosure of adverse material facts actually known by agent; Forehead had such knowledge based on agents' communications, the RamJack email, and market reactions (low offer) | Forehead: liability requires actual knowledge of a material defect; she never opened the RamJack attachments and her observations were consistent with ordinary settling | Court: statutes require disclosure of adverse material facts actually known by the agent; whether Forehead had such actual knowledge is a factual question for the factfinder (summary judgment improper) |
| Whether Forehead in fact had actual knowledge of adverse material facts (based on all information available) | Hinsons: multiple agents reported settling, Boldt emailed a report and a low $300,000 offer tied to foundation concerns — evidence of knowledge | Forehead: she did not open the RamJack attachments; other inspections conflicted; she only "glanced" at a separate older report and saw nothing major | Court: viewing evidence in Hinsons' favor, a reasonable factfinder could conclude Forehead had actual knowledge; credibility disputes preclude summary judgment |
| Whether the Hinsons’ pre-purchase inspection made alleged adverse facts "reasonably ascertainable" as a matter of law | Hinsons: their inspection did not necessarily make all adverse facts reasonably ascertainable; this is fact-specific | Forehead: buyer had an inspection/engineer report showing no significant structural issue, so facts were ascertainable and disclosure not required | Court: cannot say as matter of law that the Hinsons’ inspection made alleged adverse facts reasonably ascertainable; factfinder must decide case-by-case |
| Whether knowledge required under §76-2,120 (errors in seller disclosure) is equivalent to knowledge under §76-2417(3)(a) | Hinsons: not directly argued here | Forehead: argues knowledge standards are the same and neither statute’s knowledge element is met | Court: knowledge for §76-2,120 is not necessarily coextensive with knowledge for §76-2417(3)(a); plaintiff may prevail under one statute without the other |
Key Cases Cited
- Sundermann v. Hy-Vee, 306 Neb. 749, 947 N.W.2d 492 (summary-judgment standard; view evidence favorably to nonmoving party)
- Wintroub v. Nationstar Mortgage, 303 Neb. 15, 927 N.W.2d 19 (summary-judgment principles and record sources)
- Chaney v. Evnen, 307 Neb. 512, 949 N.W.2d 761 (statutory interpretation reviewed de novo)
- Ash Grove Cement Co. v. Nebraska Dept. of Rev., 306 Neb. 947, 947 N.W.2d 731 (determine statute meaning from text, context, structure)
- Weatherly v. Cochran, 301 Neb. 426, 918 N.W.2d 868 (plain-meaning rule for statutes)
- Hancock v. State ex rel. Real Estate Comm., 213 Neb. 807, 331 N.W.2d 526 (knowledge may be actual knowledge or facts that would lead a reasonably prudent person to believe a condition exists)
- Blome v. Hottell, 200 Neb. 528, 264 N.W.2d 424 (credibility conflicts defeat summary judgment)
- Pitts v. Genie Indus., 302 Neb. 88, 921 N.W.2d 597 (materiality in summary-judgment context)
- Thomas v. Peterson, 307 Neb. 89, 948 N.W.2d 698 (appellate court will not consider issues not decided by trial court)