VanLaningham v. Harmon
A-15-608
| Neb. Ct. App. | Feb 7, 2017Background
- Jennifer bought a Bellevue house from Joel and Mary Lou Harmon in March 2012; the Harmons executed a Seller Property Condition Disclosure stating no basement leakage or leaking windows and noting an earlier roof hail claim.
- Within weeks of possession Jennifer experienced repeated basement flooding, discovered rot and mold behind removed drywall, and observed water entry near the chimney, driveway joint, and some windows; she performed temporary mitigation and obtained repair estimates and a structural engineer report (Ehler).
- Jennifer sued Joel (later joined Mary Lou; Mary Lou was dismissed on statute-of-limitations grounds). Claims included violation of Neb. Rev. Stat. § 76-2,120, detrimental reliance, negligent and fraudulent misrepresentation, and fraudulent concealment.
- At county-court bench trial the court admitted various exhibits (including Ehler’s report/deposition by stipulation and Joel’s supplemental discovery responses); Joel objected to other invoices/estimates as hearsay. The court found Joel knew of defects and awarded $14,331.18 (including attorney fees).
- Joel moved for a new trial arguing the court relied on materials not in evidence (a fireworks citation/plea and an unauthenticated John Walker affidavit) and erroneously admitted hearsay exhibits; the county court denied relief; the district court affirmed; Joel appealed to this court.
- The appellate majority reversed and remanded for a new trial, concluding the trial court improperly relied on matters not admitted and admitted certain hearsay exhibits; one judge dissented, urging deference to credibility findings and affirmance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Directed verdict re: knowledge of defects | Jennifer: Evidence (flooding soon after purchase, Ehler’s opinion of long‑standing leaks, signs of prior repairs) shows Joel knew or should have known. | Joel: No direct evidence he knew; Jennifer’s proof is speculative; directed verdict warranted. | Denied — evidence and reasonable inferences could support a finding Joel knew of defects. |
| Dismissal for absence of necessary party (Mary Lou) | Jennifer: Mary Lou was joined and then dismissed; case could proceed without dismissing for lack of jurisdiction. | Joel: Jennifer’s earlier pleadings judicially admitted Mary Lou was necessary; dismissal required. | Denied — Mary Lou was joined then dismissed; her interests were protected and trial could resolve controversy. |
| Consideration of materials not in evidence (fireworks citation/John Walker affidavit) | Jennifer: References were improper but harmless because other properly admitted evidence supported the judgment. | Joel: Court relied on inadmissible materials in assessing credibility; prejudicial error warranting new trial. | New trial required — court relied on and cited matters not admitted; error was prejudicial. |
| Admission of invoices/estimates and mold/roofing documents (exhibits 11, 15, 27) | Jennifer: Documents show damages and costs; admissible (she offered them and testified about charges); argued residual hearsay exception if needed. | Joel: These are hearsay lacking foundation and author testimony; inadmissible. | Reversed admission — trial court erred in receiving exhibits 11, 15, and 27 as hearsay; residual exception not shown. |
Key Cases Cited
- Griffith v. Drew’s LLC, 290 Neb. 508 (standard for reviewing county-court records on appeal)
- Arens v. NEBCO, Inc., 291 Neb. 834 (directed-verdict review; hearsay admission/de novo aspects)
- Zannini v. Ameritrade Holding Corp., 266 Neb. 492 (materials not marked/offered are not part of the record)
- State v. Draganescu, 276 Neb. 448 (authentication standard for documents)
- State v. Garner, 260 Neb. 41 (residual hearsay exception is rare and exceptional)
- Henderson v. City of Columbus, 285 Neb. 482 (trial court as sole judge of credibility)