Silver v. Barner ( 2023 )

IN THE COURT OF APPEALS OF IOWA
No. 22-1670
Filed June 21, 2023
BENJAMIN J. SILVER and DANIELLE M. SILVER,
Plaintiffs-Appellants,
vs.
BRET BARNER, BARNER REALTY, HELEN L. ROYER and KEVIN ROYER,
Defendants-Appellees.
________________________________________________________________
Appeal from the Iowa District Court for Jones County, Paul D. Miller, Judge.
Benjamin and Danielle Silver appeal the district court’s summary judgment
ruling in favor of the defendants. AFFIRMED.
Anne K. Wilson of Trent Law Firm, PLLC, Cedar Falls, for appellants.
Thomas B. Read of Read & Roemerman, Cedar Rapids, for appellees
Bret Barner and Barner Realty.
Patrick L. Woodward and Nicholas J. Huffmon of McDonald & Woodward,
P.C., Davenport, for appellees Helen L. Royer and Kevin Royer.
Considered by Vaitheswaran, P.J., and Ahlers and Badding, JJ.
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VAITHESWARAN, Presiding Judge.
Helen and Kevin Royer retained Bret Barner and his real estate agency,
Barner Realty, to sell a piece of property Helen purchased from a family trust.
Barner told Benjamin and Danielle Silver about the property. The Silvers
purchased it, with Barner serving as agent for both sides.
The summer after the purchase, the Silvers found snakes in the house and
discovered other problems. They sued the Royers, Barner, and his company. The
Silvers alleged Barner “pre-filled” the purchase agreement, checking the box that
waived inspections of the property. They further alleged the Royers were required
to “provide a true and accurate [s]eller’s [d]isclosure [s]tatement,” and they failed
to properly disclose (1) pest infestations and the effect on the value or desirability
of the property; (2) the fact that the property was in the federal Conservation
Reserve Program, which prevented them “from doing anything agriculture related
on the property until it came out of CRP”; (3) “further information regarding the
location of [septic] tanks” on the property; (4) the presence of abandoned cisterns;
(5) multiple electrical problems affecting the property’s insurability; and (6) debris
left on the property. They also alleged that neither the Royers nor Barner and his
company provided a copy of an easement agreement. The Silvers claimed the
defendants violated their rights under the real estate disclosure statute and made
fraudulent misrepresentations.
The defendants moved for summary judgment. The Silvers resisted. The
district court granted the motions and denied a motion to reconsider. This appeal
followed.
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“A motion for summary judgment is appropriately granted when there is no
genuine issue as to any material fact and . . . the moving party is entitled to a
judgment as a matter of law.’” Venckus v. City of Iowa City, ___ N.W.2d ___, ___,
2023 WL 3555505, at *6 (Iowa 2023) (internal quotations and citation omitted);
accord Schermer v. Muller, 380 N.W.2d 684, 687 (Iowa 1986)(“[W]e must ascertain
whether the full summary judgment record discloses genuine issues of fact for
trial.”). The Silvers argue “there were legitimate questions of fact that should have
been determined at trial.” Our review is on error. Venckus, 2023 WL 355505 at
*5.
A seller of real estate is required “to provide a written disclosure statement
to a potential buyer.” See Putman v. Walther, 973 N.W.2d 857, 863 (Iowa 2022).
The disclosure must include “information relating to the condition and important
characteristics of the property and structures located on the property.” Id. (citing
Iowa Code § 558A.4(1)(a) (2022)). A person who violates the chapter is liable for
actual damages, but “[t]he transferor, or a broker or salesperson . . . shall not be
liable . . . unless that person has actual knowledge of the inaccuracy, or fails to
exercise ordinary care in obtaining the information.” Id. § 558A.6(1).
Fraudulent misrepresentation requires proof of “(1) [r]epresentation;
(2) [f]alsity; (3) [m]ateriality; (4) [s]cienter; (5) [i]ntent to deceive; (6) [r]eliance; and
(7) [r]esulting injury and damage.” Arthur v. Brick, 565 N.W.2d 623, 625 (Iowa Ct.
App. 1997) (quoting Robinson v. Perpetual Serv. Corp., 412 N.W.2d 562, 565
(Iowa 1987)). “[F]or a buyer to prevail upon a claim based on misrepresentation”
in this context, “not only must the seven elements of fraudulent misrepresentation
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be met, but they are measured in conjunction with the standards for disclosure as
required by section 558A.” Id. at 626.
The Silvers waived inspection of the property. They acknowledge the
waiver but contend “Barner, acting as their agent, told them not to inspect the
property,” and the statement is “material to [their] claims of fraudulent
misrepresentation.” The district court rejected the argument on the ground that the
Silvers signed the document. The summary judgment record supports the court’s
determination. Indeed, the Silvers admitted they executed the document freely
and voluntarily, and Benjamin Silver admitted he inspected the property and
“[k]inda” made a punch list of things they could use as a bargaining chip. In light
of these statements, we discern no fact issue on the waiver-of-inspection claim.
The Silvers next contend Barner told them they could not obtain a home
warranty, given the age of the home. They claim they were ready to refute the
representation with evidence from another realtor. The Silvers did not designate
the realtor as an expert. See Putman, 973 N.W.2d at 864 (discussing the failure
to designate an expert and whether an expert was needed on non-disclosure and
damage questions). And, even if they deemed her a lay witness, they failed to
submit an affidavit or deposition transcript in resistance to the summary judgment
motion.1 The district court did not err in declining to find a genuine issue of material
fact. See Cemen Tech, Inc. v. Three D Indus., L.L.C., 753 N.W.2d 1, 5 (Iowa
2008).
1 Barner points out that a one-page document purporting to be a market analysis
prepared by the witness is not a market analysis and is outside the summary
judgment record. We agree on both counts.
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We turn to the Silvers’ contention that they did not receive a copy of an
easement agreement affecting the property. The Silvers concede the Royers
advised them of the easement but argue the agreement would have helped them
understand its import. Helen Royer explained its import. She answered “Yes” to
the question whether there was an easement and she included a handwritten
comment stating the “[e]asement [a]greement [was] on [the] driveway/lane for
adjoining landowners.” The comment clarified the nature and purpose of the
easement. Because the Silvers were made aware of the easement details, the
defendants’ failure to give them the agreement did not amount to a disclosure
violation.
In the same vein, the Silvers argue that, while the Royers informed them
the property was “subject to CRP,” they were not told the program precluded them
from using the property for agricultural purposes for several months. Their
admission that they knew about the Conservation Reserve Program before the
house was purchased undermines their argument. In addition, Benjamin Silver
acknowledged that he received the CRP payment for 2019 and agreed he was not
“making any claim of any damages because the property was in the Conservation
Reserve Program.” In light of these concessions, the Silvers’ apparent lack of
knowledge regarding their ability to use the land for agricultural purposes did not
preclude a grant of summary judgment.
The Silvers next contend they were not informed that a second septic
system designed to service a “big building” on the property was inoperable.
Kevin Royer countered that he was unaware of a septic tank behind the big
building or cisterns on the property. Although he admitted authorizing construction
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of the building, he testified his wife had not lived on the property since 1987 and
neither of them were allowed on the property from 2012 until after the 2018 death
of Helen’s mother. Their lengthy absence from the premises supports their
contention that they did not know the tank was inoperable.
The Silvers also argue the disclosure form “indicated that there was no junk
left behind on the property,” when there was in fact “a significant amount of junk
left behind.” While the Silvers assert “it would be illogical for anyone who walked
the property to view the existence of the junk,” Danielle Silver admitted she was
aware of the junk before they offered to purchase the property and they discussed
it with Barner. Danielle was asked whether she made removal of the junk a
condition of the purchase. She responded, “No.” There was no issue of material
fact precluding summary judgment on this issue.
We are left with the Silvers’ assertion that the Royers failed to disclose a
snake infestation on the property. Specifically, the Royers answered “[n]o” to the
questions, “Are there any active or inactive structural pest infestations?” and “Is
there anything else which would adversely affect the value or desirability of the
property?” But, as noted, they were not present on the property for years.
The Silvers attempted to generate a fact issue on the Royers’ knowledge of
the presence of snakes with affidavits from Helen Royer’s brother. He stated
“there were always snakes on the property.” He further attested he saw a snake
“climbing up the wall in the basement” after his mother passed away. While he
later clarified “[t]he snake was particularly small and not at all frightening,” he
attributed knowledge of the snakes to Helen Royer in both affidavits, stating she
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“was at the property much more than [he] was” and he was “sure that she knew
that there were snakes on the property.”
These affidavits might have generated a fact issue on Helen’s knowledge
of snakes on the property but for Helen’s own testimony. She stated that, in the
five or six times she cleaned the home prior to its sale, she never saw snakes or
snake skins. When asked, “Did you have any knowledge of any snakes being in
your mother’s house . . . before the closing?” she responded, “No.” She further
testified to seeing no snakes outside the house after 2013. Before then, she said
she might have seen a garter snake or “something like that, something that would
be typical of a rural farm place that’s next to a quarry, that’s next to a river, that’s
next to limestone.” She continued, “[O]therwise no, never any in the house ever
growing up.” Helen’s deposition testimony refutes her brother’s suggestion that
she knew about snakes. More to the point, the question on the disclosure
statement related to “pest infestations” and Helen reasonably could have surmised
from her personal experience that there was no “infestation” of snakes on the
property. Cf. Robinson v. Welp, No. 17-1801, 2019 WL 2879933, at *5 (Iowa Ct.
App. July 3, 2019) (citing the defendants’ “extensive efforts to minimize the snakes
in the yard and the food supply of the snakes in and around their home” and
concluding “checking ‘no’ to the question asking, ‘Is there a problem with . . .
snakes?’ was a violation of their duty.”). As for the Silvers’ remaining arguments
in support of a finding that the Royers had actual knowledge of a snake infestation,
they failed to present more than speculative evidence in support of those
arguments. See Cemen Tech, 753 N.W.2d at 5 (“Speculation is insufficient to
create a genuine issue of material fact.”).
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We conclude the district court did not err in granting the defendants’ motions
for summary judgment.
AFFIRMED.