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Hutchison v. Kula

Court of Appeals of Nebraska

April 16, 2019


         1. Trial: Witnesses. In a bench trial of an action at law, the trial court is the sole judge of the credibility of the witnesses and the weight to be given to their testimony.

         2. Witnesses: Evidence: Appeal and Error. An appellate court will not reevaluate the credibility of witnesses or reweigh testimony but will review the evidence for clear error.

         3. Judgments: Appeal and Error. The trial court's factual findings in a bench trial of an action at law have the effect of a jury verdict and will not be set aside unless clearly erroneous.

         4. ___: ___ . In reviewing a judgment awarded in a bench trial of a law action, an appellate court does not reweigh evidence, but considers the evidence in the light most favorable to the successful party and resolves evidentiary conflicts in favor of the successful party, who is entitled to every reasonable inference deducible from the evidence.

         5. Actions: Pleadings. Two or more claims in a complaint arising out of the same operative facts and involving the same parties constitute separate legal theories, of either liability or damages, and not separate causes of action.

         6. Actions: Real Estate: Sales: Pleadings: Proof. To state a cause of action under Neb. Rev. Stat. § 76-2, 120 (Reissue 2018), the buyer must plead and prove either that the seller failed to provide a disclosure statement or that the statement contained knowingly false disclosures by the seller.

         7. Appeal and Error. An appellate court is not obligated to engage in an analysis which is not needed to adjudicate the case and controversy before it.

         [27 Neb.App. 97] 8. Attorney Fees: Appeal and Error. A party may recover attorney fees and expenses in a civil action only when a statute permits recovery or when the Nebraska Supreme Court has recognized and accepted a uniform course of procedure for allowing attorney fees.

         9. Real Estate: Sales: Attorney Fees. Attorney fees are mandatory in an action under Neb. Rev. Stat. § 76-2, 120(12) (Reissue 2018).

         10. Attorney Fees: Appeal and Error. When an attorney fee is authorized, the amount of the fee is addressed to the trial court's discretion, and its ruling will not be disturbed on appeal absent an abuse of discretion.

          Appeal from the District Court for Sarpy County: Stefanie A. Martinez, Judge. Affirmed.

          Blake E. Johnson, of Bruning Law Group, for appellants.

          Douglas W. Ruge for appellees.

          Pirtle and Bishop, Judges.

          Bishop, Judge.


         Charles Hutchison and Melissa Hutchison purchased a house located in Bellevue, Nebraska, from Mark Kula and Renie Kula. The Hutchisons subsequently sued the Kulas in the Sarpy County District Court due to problems related to the real estate purchase, namely, water intrusion, a leaking window, a defective refrigerator fan and garage door keypad, and a dead tree. After a bench trial, the district court found the Kulas liable for (1) violation of Neb. Rev. Stat. § 76-2, 120 (Reissue 2018) (governing seller real property condition disclosure statements), (2) fraudulent misrepresentation, (3) negligent misrepresentation, and (4) fraudulent concealment. The Hutchisons were awarded $16, 744 in damages, plus costs and $10, 000 in attorney fees.

         The Kulas appeal the judgment, and the Hutchisons cross-appeal, claiming they should have been awarded the entirety of the attorney fees requested rather than the partial amount awarded. We affirm the district court's order in all respects.

         [27 Neb.App. 98] II. BACKGROUND

         1. The Kulas' Disclosure Statement

         On June 22, 2015, the Kulas signed a "Seller Property Condition Disclosure Statement" (Disclosure Statement), which was received at trial as exhibit 1. The Kulas disclosed that they had owned and occupied the property for 7 years. We set forth only those portions of the Disclosure Statement relevant to the issues raised on appeal. Beginning with "Part I," by placing checkmarks in boxes next to the listed item, the Kulas disclosed that the following items were "Working": the refrigerator, the garage door keypad, and the sump pump.

         In "Part II," "Section A. Structural Conditions," question No. 5 asks, "Has there been water intrusion in the basement or crawl space?" The Kulas placed a checkmark under "Yes." The form directs that if the answer to any item in section A is "Yes," the seller is to explain the condition in the comments section of "Part III" of the Disclosure Statement. In the comments section, the Kulas handwrote: "section A - Structural Conditions - during 2014 during heavy rains, nei[g]hbor[']s sump pump not working, etc. some water (minor) seeped up in basement (NE [northeast] corner) - added additional drain system."

         Also in part II, section A, the Kulas answered "Do Not Know" to question No. 9, "Are there any windows which presently leak, or do any insulated windows have any broken seals?" In part II, "Section D. Other Conditions," question No. 13 asks, "Are there any diseased or dead trees, or shrubs on the real property?" The Kulas placed a checkmark under "No." In the same section, question No. 14 asks, "Are there any flooding, drainage, or grading problems in connection to the real property?" Again, the Kulas placed a checkmark under "No."

         The Kulas provided the Disclosure Statement to the Hutchisons prior to execution of the purchase agreement for the property in December 2015. The Hutchisons closed and took possession of the property in March 2016.

         [27 Neb.App. 99] 2. The Hutchisons' Claims

         According to the Hutchisons' second amended complaint, immediately after moving into the property, there was water leaking "during rains." Allegedly, after closing in March 2016, they discovered "rust staining on the carpet and efflorescence staining on concrete slab" from previous water intrusions and that the "drain tile system did not function as designed for long before closing." They claimed that "[w]ithin a couple months of closing the carpeting in the basement started to mold," the carpeting was removed, and the "carpet nails were rusty." They asserted that vinyl flooring was removed, "revealing wetness and mold underneath." In May 2016, "gutter downspouts exit points were located buried under 2 inches of dirt with grass growing over it."

         Regarding the Kulas' Disclosure Statement which noted a "minor" water leakage in the northeast corner of the basement in 2014, the Hutchisons claimed that the Kulas "had experienced other leakage or seepage issues in other areas and at other times[, ] and leaking was known by them to be an ongoing problem with the home," and that the Kulas did not disclose the long-term and continuing water intrusion and "ongoing leaking issues." They claimed that upon moving into the property, the leakage or seepage in the basement and crawl spaces was most pronounced in the northwest corner of the house and "along the south of the house." And they alleged that the previous leak was not due to the neighbor's malfunctioning sump pump, contrary to what was represented in the Disclosure Statement. Purportedly, waterproofing companies gave the Kulas a proposal in 2014, and that work was limited to the northeast corner. The waterproofing companies allegedly "recommended more extensive remedial action." The Hutchisons claimed that waterproofing companies and contractors were "recommending repairs in the amount of $15, 940 to waterproof and remedy damage to the basement areas."

         [27 Neb.App. 100] The Hutchisons further alleged that the Kulas' representations about windows, the refrigerator, garage door keypad, and trees were "false and known to be false by the [Kulas]." They claimed that there was a leaking window, the refrigerator fan and garage door keypad did not work, and there was a tree that had been dead for over 1 year; they asserted it would cost $834 to remediate those issues.

         The Hutchisons claimed that they read and relied on the representations in the Disclosure Statement and that the Kulas intended them to so rely and knew about these conditions or reasonably should have known and failed to disclose or misrepresented the condition of the home. The Hutchisons sought relief, claiming there was fraud and material misrepresentation and violation of § 76-2, 120, fraudulent concealment, and negligent misrepresentation. They requested $16, 774 in damages, plus costs and attorney fees.

         The Kulas filed an answer denying the material allegations of the Hutchisons' complaint.

         3. Trial

         At the bench trial on July 13, 2017, witness testimony was presented and exhibits 1 through 40 were admitted into evidence.

         (a) The Hutchisons

         Charles testified that the Hutchisons took possession of the property on March 7, 2016, and that he started moving in half of his "stuff the following weekend. According to exhibit 5, the Hutchisons wed and went on a honeymoon from April 9 to 19, and the move was completed on April 23. Exhibit 5 is a timeline Charles created relating to alleged water intrusions, and during Charles' testimony, he often referred to photographs contained in exhibit 8 which depicted the various problem areas he described. The Hutchisons experienced several water intrusions in the basement "every time it rained" from March 26 to August 22 or 23, when Jerry's Basement Waterproofing (Jerry's) performed remedial work.

         [27 Neb.App. 101] (i) Water Intrusion

         According to Charles (either through testimony or exhibit 5), the first water intrusion occurred around March 26, 2016. This involved basement window leaks and water intrusion "along the floor, north section, the section where the faux wood tiles were along the west wall; and then that southwest corner, a little bit of dampness along that west wall in that corner." On April 20, during a rainstorm, the water intrusion was "severe"; the basement did not dry out again until all the tile and part of the carpet was removed on May 14. Also, the basement window "leak[ed] again" during the rainstorm. Charles described "water sitting in the windowsill" on the south wall with a "drip of the water coming down the wall" and "standing water outside the basement sliding glass door [located] in close proximity to the south wall . . . over an inch deep . . . just pooling there." Photographs from April 20 show carpetstains along the south wall. Another photograph shows the area where Charles thought the Kulas replaced carpet with a "tile product" (also referred to as a "wood faux tile") after the Kulas' water intrusion, and "when you stepped or pushed on the tile product, water would seep up through that tile product." On April ...

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