Hinson v. Forehead
30 Neb. Ct. App. 55
| Neb. Ct. App. | 2021Background
- Sellers (the Beans) listed a house with broker Cindy Forehead (Ambassador); multiple prospective buyers and their agents raised concerns about foundation settling, water damage, and cracking during showings.
- Agent Melissa Boldt forwarded a RamJack structural inspection and estimate to Forehead after a prospective buyer’s inspection; Forehead testified she did not open the email attachments but read the email text and told the sellers an inspection report was coming.
- The Hinsons bought the house after receiving their own inspection and an engineer’s report concluding no significant structural issues; later they learned of the RamJack report and alleged undisclosed structural defects.
- The Hinsons sued the sellers, Forehead, Ambassador, and others; claims against some defendants were dismissed by stipulation.
- The district court granted summary judgment for Forehead and Ambassador, concluding Forehead lacked actual knowledge of a material defect; the Court of Appeals reversed and remanded, holding there is a genuine factual dispute whether Forehead actually knew adverse material facts she was required to disclose and that buyer inspections do not automatically render facts reasonably ascertainable as a matter of law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a seller’s agent must disclose to a prospective buyer all adverse material facts actually known to the agent under §76-2417(3)(a). | Hinsons: Forehead received multiple agent communications, a lower offer citing foundation work, and the RamJack inspection/estimate; she therefore had actual knowledge of adverse material facts that she failed to disclose. | Forehead/Ambassador: Liability requires actual knowledge of a material defect; Forehead never opened the RamJack attachments, only viewed a prior report as "nothing major," and observed only typical age-related settling. | Reversed district court: viewed in Hinsons' favor, evidence creates a genuine issue of fact whether Forehead actually knew adverse material facts; remand for further proceedings. |
| Whether the alleged adverse material facts were "reasonably ascertainable or known" to the Hinsons (so disclosure would not be required). | Hinsons: Obtaining their own inspection does not, as a matter of law, render alleged adverse facts reasonably ascertainable; this is a fact question. | Forehead: Hinsons had an inspection and an engineer’s report finding no significant structural issues, suggesting facts were ascertainable to buyers. | Court: Cannot decide as a matter of law; whether facts were reasonably ascertainable is a question for the factfinder. |
| Whether knowledge required under §76-2,120 (errors in seller disclosure) is coextensive with the knowledge required under §76-2417(3)(a). | Hinsons: §76-2417(3)(a) imposes a duty to disclose adverse material facts actually known by the licensee regardless of §76-2,120. | Forehead/Ambassador: Liability under §76-2417 should be tied to the §76-2,120 knowledge standard. | Court: Statutes are not interchangeable; lack of knowledge under §76-2,120 does not preclude liability under §76-2417(3)(a). |
Key Cases Cited
- Sundermann v. Hy-Vee, 306 Neb. 749, 947 N.W.2d 492 (Neb. 2020) (summary judgment standard and appellate view of evidence)
- Chaney v. Evnen, 307 Neb. 512, 949 N.W.2d 761 (Neb. 2020) (statutory interpretation is a question of law reviewed de novo)
- Ash Grove Cement Co. v. Nebraska Dept. of Rev., 306 Neb. 947, 947 N.W.2d 731 (Neb. 2020) (statutory meaning from text, context, structure)
- Weatherly v. Cochran, 301 Neb. 426, 918 N.W.2d 868 (Neb. 2018) (plain-language statutory interpretation)
- Wintroub v. Nationstar Mortgage, 303 Neb. 15, 927 N.W.2d 19 (Neb. 2019) (summary judgment standards)
- Pitts v. Genie Indus., 302 Neb. 88, 921 N.W.2d 597 (Neb. 2019) (materiality in summary judgment context)
- Blome v. Hottell, 200 Neb. 528, 264 N.W.2d 424 (Neb. 1978) (conflicting testimony/credibility precludes summary judgment)
- Hancock v. State ex rel. Real Estate Comm., 213 Neb. 807, 331 N.W.2d 526 (Neb. 1983) (knowledge defined to include actual knowledge or facts that would cause a reasonably prudent person to believe a condition exists)