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Bott v. Holman

Court of Appeals of Nebraska

July 29, 2014

JEFF BOTT AND VICTORIA BOTT, HUSBAND AND WIFE, APPELLANTS,
v.
THOMAS L. HOLMAN AND SHARON A. HOLMAN, HUSBAND AND WIFE, APPELLEES

Page 801

[Copyrighted Material Omitted]

Page 802

Appeal from the District Court for Scotts Bluff County: LEO DOBROVOLNY, Judge.

Maren Lynn Chaloupka, of Chaloupka, Holyoke, Snyder, Chaloupka, Longoria & Kishiyama, P.C., L.L.O., for appellants.

Paul W. Snyder, of Smith, Snyder & Petitt, G.P., for appellees.

MOORE, PIRTLE, and RIEDMANN, Judges.

OPINION

Page 803

[22 Neb.App. 230] Riedmann, Judge.

INTRODUCTION

Jeff Bott and Victoria Bott brought an action for rescission of a purchase agreement they entered into with Thomas (Tom) L. Holman and Sharon A. Holman, based on allegations of fraudulent misrepresentation and fraudulent concealment. Following a bench trial, the district court for Scotts Bluff [22 Neb.App. 231] County found insufficient evidence to establish the Botts' claims and entered judgment in favor of the Holmans. The Botts appeal from that judgment. Because we find that the Botts proved all of the elements of fraudulent misrepresentation, we reverse the district court's order and remand the matter for further proceedings.

BACKGROUND

In June 2011, the Botts entered into a purchase agreement with the Holmans for the purchase of a home in Scottsbluff, Nebraska. Shortly after moving in, the

Page 804

Botts hired a contractor to install a heating and cooling system in the crawl space of the residence. While working in the crawl space, the contractor discovered water damage on the floor joists and alerted the Botts. Jeff Bott went into the crawl space and observed that the floor joists in the northeast corner of the house were rotten, crumbling, and moldy.

The Botts hired an engineer, Larry McCaslin, to conduct a structural inspection of the home in September 2011. Upon inspecting the crawl space, McCaslin observed a considerable amount of damage in the flooring system. McCaslin observed multiple floor joists that were cracked and rotten. Some of the floor joists had rotted so severely that they no longer reached the sill plate, and they were being supported by floor jacks and shims. The insulation between the floor joists and above the sill plate was deteriorated and black, and there was mold and mildew throughout the crawl space.

A sill plate is a 1½ -inch-thick piece of wood that sits on top of the concrete foundation. McCaslin explained that the purpose of the sill plate is to provide a smooth and level surface to which the floor joists are attached and to transfer the load from the floor joists down to the foundation. McCaslin observed that the sill plate had completely rotted away in the northeast corner of the home, causing the floor joists to sit 1½ inches lower in that area.

McCaslin noted damage in other areas as well, but the most severe damage was in the northeast corner of the home. He believed the damage was caused by moisture leaking into the crawl space. McCaslin described the status of the flooring [22 Neb.App. 232] system as " critical," and he stated that it needed to be repaired right away to make the house safe. McCaslin recommended replacing the sill plate, floor joists, and insulation, and regrading the site to direct water drainage away from the house, among other possible repairs.

The Botts hired a contractor to provide an estimate for the necessary repairs. The contractor explained that the house would have to be jacked up in order to replace the sill plate and floor joists. He estimated that the total cost, including materials and labor, would be approximately $72,000.

The Botts brought this action to rescind the purchase agreement on the basis of fraudulent misrepresentation and fraudulent concealment in the property condition disclosure statement provided by the Holmans. The evidence at trial established that the Holmans were aware of at least some of the damage ...


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