Hutchison v. Kula

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
04/23/2019 09:06 AM CDT
- 96 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
HUTCHISON v. KULA
Cite as 27 Neb. App. 96Charles Hutchison Melissa Hutchison,
and
appellees and cross-appellants, v. M ark
Kula and R enie Kula, appellants
and cross-appellees.
___ N.W.2d ___
Filed April 16, 2019. No. A-17-1275.
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 sepa-
rate 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 state-
ment 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.
- 97 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
HUTCHISON v. KULA
Cite as 27 Neb. App. 968. 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 uni-
form 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. M artinez, Judge. Affirmed.
Blake E. Johnson, of Bruning Law Group, for appellants.
Douglas W. Ruge for appellees.
Pirtle and Bishop, Judges.
Bishop, Judge.
I. INTRODUCTION
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 dis-
closure statements), (2) fraudulent misrepresentation, (3) neg-
ligent 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.
- 98 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
HUTCHISON v. KULA
Cite as 27 Neb. App. 96II. 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 com-
ments 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 flood-
ing, 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.
- 99 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
HUTCHISON v. KULA
Cite as 27 Neb. App. 962. 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, “reveal-
ing 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 base-
ment 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 com-
panies 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 base-
ment areas.”
- 100 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
HUTCHISON v. KULA
Cite as 27 Neb. App. 96The Hutchisons further alleged that the Kulas’ representa-
tions 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 mis-
represented the condition of the home. The Hutchisons sought
relief, claiming there was fraud and material misrepresenta-
tion and violation of § 76-2,120, fraudulent concealment, and
negligent misrepresentation. They requested $16,774 in dam-
ages, 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 intru-
sions, and during Charles’ testimony, he often referred to
photographs contained in exhibit 8 which depicted the vari-
ous 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.
- 101 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
HUTCHISON v. KULA
Cite as 27 Neb. App. 96(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 27, there were “longstanding water prob-
lems in furnace room.” On April 29, a new downspout exten-
sion was purchased and installed on the southwest side of the
property to mitigate pooling of water in front of the basement
patio door.
On May 11, 2016, Jerry’s inspected the water intrusion
issues and recommended “interior drain systems with new
sump & pump and exterior drain system around basement patio
area.” As of May 14, Charles said, “Everything stayed wet
despite the fact [they] purchased a dehumidifier and brought
fans down into the basement.” The Hutchisons “noticed mold
coming through the carpet” that was visible from the top of
the carpet. According to Charles, a photograph relating to May
14 shows “a piece of wooden rail moulding” that was on the
far north end of the basement. When that piece of moulding
- 102 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
HUTCHISON v. KULA
Cite as 27 Neb. App. 96was removed and flipped over, there was “black mold that had
already grown substantially.” Another photograph showed “a
downspout that had been grown over by about two inches.”
He described that another photograph showed that the wood
faux tile was “mildewy” and that upon pulling back tiles “to
see how wet it was,” there was no “area under that entire north
section where the tile was that was not wet and mildewy or
molding.” They pulled all of the tile out; Charles referred to
a photograph which showed that concrete underneath the tile
was “all wet.” Only “about a five foot by six foot, or so, piece
[of carpet] had actually molded,” so Charles cut and removed
that as well as the wet carpet pad underneath that area. He
rolled back the rest of the carpet to dry it out. He referenced
photographs of the May 14 “stained and moldy carpet” and
“residue of the previous carpet glue,” where the Kulas alleg-
edly removed and replaced carpet with tile, that “had started to
mold because it had been wet for a couple of weeks.” A down-
spout extension was added to the northeast corner that day, and
another was added to the northwest corner on May 16. Charles
claimed that there were no downspout extensions upon taking
possession of the property. He stated that after recaulking the
basement window on May 14, there were no additional “water
drips in the window.”
Charles described photographs from May 21, 2016, showing
“moldy carpet glue in the northeast corner,” “a piece where
it looks like someone tried to seal the concrete crack,” “rusty
nails in the southwest corner,” and “[in the northwest corner]
darkened places where the water damage . . . ha[d] been able
to discolor the concrete, similarly along the west wall.” For
May 26, it is noted that “[e]ven after downspout extension in
place, water still pools outside basement sliding glass door.”
Charles testified that another water intrusion occurred on June
21 to the northwest corner and near the northeast corner when
there had been rain of “only seventeen hundredths of an inch,”
and he described water intrusions July 2, 7, and 12 in the
north, northwest, northeast, and/or west wall of the basement.
- 103 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
HUTCHISON v. KULA
Cite as 27 Neb. App. 96Charles indicated that in preparation for Jerry’s installation
of an interior drain system, the Hutchisons had to remove the
bottom 36 inches of drywall and did so on July 30, 2016. He
described photographs from that day as showing “mold[] on
the back of the drywall and the stud that it had been connected
to” and “moulding . . . with mildew/mold.” On August 12,
the Hutchisons experienced another water intrusion; Charles
described the photographs from that day, saying, “[Y]ou can
see that water is coming in all the way along that north wall.
And in the photo below it, it continues all the way along that
north wall and continues to come down that west wall on the
photo below it.” More water intrusions on August 19 were
noted in exhibit 5 as along the west wall, northwest corner,
and north wall. Charles claimed that on August 24, after
Jerry’s performed the remedial work, and “to this date, [the
Hutchisons] have not had water in [their] basement.”
(ii) Refrigerator
Charles testified that as soon as the Hutchisons started using
the refrigerator in March 2016, the food “just never got cold”
so he “realized there was something wrong with the refrigera-
tor.” He said he called a repairman who on March 26 “diag-
nosed . . . the problem . . . was a fan motor”; the repairman
installed the part about a week or so later and the refrigerator
has worked since then.
(iii) Garage Door Keypad
Charles said that from the time they moved in, the garage
door keypad entry had not worked. He stated that “after replac-
ing the batteries and doing a number of different things, the
lights on the keypad would come on” but the garage door
would not open. Charles “reprogrammed it to make sure
that [they] had the code correct, and it still wouldn’t work.”
Charles claimed that when Mark Kula came over on May 11,
2016, Mark “admitted to [Charles] that there had been prob-
lems in the past with the keypad.” “He did not say it was not
- 104 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
HUTCHISON v. KULA
Cite as 27 Neb. App. 96working but they had had problems with it.” Mark suggested
that Charles change the batteries; “[h]e did not seem surprised
that the keypad was not working.” The Hutchisons eventually
bought a new keypad.
(iv) Tree
Charles testified that at the time the Hutchisons took posses-
sion in March 2016, “[l]eaves were not yet on the trees” and
there had not been leaves on the trees when the Hutchisons
visited the property in November 2015. He said that they did
not notice that the tree was dead until the spring of 2016 when
their tree never formed leaves. Melissa Hutchison testified
that she believed the tree was dead at the time they bought the
house, because “[the tree] never leaved that spring” and thought
she had remembered that the Kulas maybe “had offered to pay
for the tree after the fact and that [the Hutchisons] had pointed
out to them that it was dead.” But, Charles denied that Mark
made this offer.
(b) Mark Dorner
Mark Dorner testified that he is one of the owners of Jerry’s
and that he was familiar with the property because he provided
an estimate for repair of the basement and Jerry’s did the
work on the property. Jerry’s invoice dated August 27, 2016,
and the accompanying bid from May 11 to Charles for base-
ment work was received as exhibit 6. Dorner said the bid was
something he recommended to remedy water problems and
that Jerry’s issued a warranty in connection with the bid. The
invoice shows that the Hutchisons paid for an “[i]nside tile
system installed as per contract” and for installation of a “new
sump pump.”
Although Dorner admitted he did not visit the property
while the Kulas owned it, Dorner testified regarding exhibit
11, which was Jerry’s invoice dated August 11, 2014, and
the accompanying bid from June 21 to Mark for repair of
the basement. The bid presented two options. Option 1 listed
- 105 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
HUTCHISON v. KULA
Cite as 27 Neb. App. 96prices for “sump well location by owner” and “battery backup
pump.” Dorner said that option 1 was the more expensive
option, and he acknowledged that a notation in handwriting at
the bottom of the bid indicated that a warranty is available for
only option 1. Dorner stated, and exhibit 11 shows, that the
Kulas chose option 2 with no warranty. Work was invoiced
as follows: “Excavated Corner to expose [drain] tile system.
Connected to it and run tail to daylight as per contract.” To
explain why a warranty was not issued for option 2, Dorner
said, “[I]t would be a trial and error. It’s something that will
evacuate some of the water from the drain tile but may not
give a complete dry basement.”
(c) Neighbor
A neighbor testified that her residential address is “next
door” and immediately to the north of the property. The neigh-
bor stated that she has a sump pump in her house and has had
one ever since the property was bought, which was “[a]t least
11 years ago.” She denied ever having a sump pump malfunc-
tion problem with her house in 2014. She said that in 2014, she
talked with Renie about the Kulas’ water issues at the prop-
erty, but the neighbor denied saying that she was having sump
pump malfunctions in those discussions.
(d) Brad Lauritsen
According to Brad Lauritsen’s resume, he is a mechanical
engineer with experience in providing investigative engineer-
ing services for insurance claim cases, including property
losses involving water infiltration. The purpose of his inves-
tigation report for this case was to render an opinion as to
(1) the nature, extent, and history of water intrusion issues at
the property and (2) the accuracy of the statements made in
the Disclosure Statement regarding water intrusion issues of
the property.
In his report, Lauritsen stated, “Most people think that a
drain tile and sump pump system will prevent water from
- 106 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
HUTCHISON v. KULA
Cite as 27 Neb. App. 96entering their basement through the walls, during a heavy rain.
This is not true.” He explained that the “water table” is under
the house and is the “level at which when digging down, one
would reach water . . . . When it rains, the water table rises.
If the water table rises higher than the floor of your base-
ment, water can seep in between the basement slab and the
foundation wall.” He said a drain tile system is a system of
perforated pipes around a house’s foundation that “drain[s]
into a pit located in the basement floor (the sump).” And,
“[w]hen the water level in the sump pit rises, [a float switch
in the sump pit] turns on the pump.” He defined seepage as
“when the basement floor gets some little rivulets and puddles
of water, usually no deeper than 1/4 to 1/2″ deep, which soaks
and ruins the carpet.”
Lauritsen indicated that he added rain data to a timeline
provided by Charles (the timeline in the report is similar to
the timeline of exhibit 5). He verified the original rain data
with the weather station at Offutt Air Force Base and verified
the rainfall history for the preceding years using the same
source. He stated that the rainfall data showed “daily totals.”
Lauritsen testified, “My findings were that, basically, the rain-
fall was fairly consistent, I believe, from 2010 to 2016.” In his
report, he wrote, “[I]t is not plausible the seepage only started
as soon as [the Hutchisons] moved into the house. All condi-
tions which would contribute to seepage remained the same.”
He testified as to what he meant by “all conditions.” He stated
that the patio was “a very flat area surrounded by landscap-
ing with river rock draining water right onto it” and that there
was “a gutter with no extension draining right at the top of
that river rock that would direct water down” to the patio. The
landscaping barrier prevented any water from draining out in
the yard; he referenced a photograph of “a large amount of
standing water on the patio that wasn’t being drained off.”
He testified that “the drainage right at the foundation, around
the perimeter of the house; particularly, in the back, wasn’t
- 107 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
HUTCHISON v. KULA
Cite as 27 Neb. App. 96adequate” and that the foundation was “sloped toward the
back of the house” and “was pretty flat right at the founda-
tion and didn’t really have the slope you would want to direct
water away from the foundation.” He stated that “a large con-
tributor to basement seepage is not having that slope right to
the foundation there.” He stated that there were several areas
of water intrusion, noting the areas of the patio, a depressed
area along the west wall, and all along the north wall in the
northeast corner. He said that if downspout extensions are
missing, it is a “big sign” that water is being deposited “right
on the foundation.”
Lauritsen’s report noted the Hutchisons “experienced water
intrusion and leaking windows with only 0.37″ of rainfall dur-
ing the first occurrence. It is nearly impossible this type of
water infiltration was just happening for the first time during
the first rainfall of the [Hutchisons’] occupancy.” In relation
to that statement, Lauritsen testified that he was shown the
photograph of the basement window and that he verified the
amount of rainfall, which he said was “a pretty small amount
of rainfall, even if it occurred in a short period of time, to
produce that type of water.” And further, that “if that problem
occurred with that little bit of rainfall right after it took place,
there would be no reason to believe it didn’t take place before
[the Hutchisons] took possession of the house, as well, back
any number of years.”
On cross-examination, Lauritsen opined that “[t]he evi-
dence [he] saw in the basement show[ed] a fairly long-term
problem.” He pointed out “there was some significant water
intrusion” after the Hutchisons moved in that was “ongoing
until it was fixed.” He stated that it was “very unusual, in [his]
experience, to see that much over that short of period of time
and that consistent throughout varying levels of rainfall.” That
led him to believe that “since the conditions didn’t change, as
far as grading or construction or any type of repairs, when [the
Hutchisons] took possession, those conditions existed prior to
that as well.”
- 108 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
HUTCHISON v. KULA
Cite as 27 Neb. App. 96Lauritsen’s report shows that he also concluded that (1)
“[t]he characterization of the water infiltration as ‘minor’ in
the [Disclosure Statement] is inconsistent with [the Kulas’]
statements in the deposition” and (2) “[a] non-functioning
sump pump at a neighboring house did not contribute to water
infiltration of the basement.” According to his report, “A
house’s drainage system does not rely on a neighbor’s sump
pump and drainage system to keep water out of it.” Further,
the water intrusion at the property was “strictly from excess
surface/rain water not being drained properly by the house’s
own perimeter drainage system.” He observed that “the origi-
nal drain tile system and sump pit were dry” and that water
was “not getting into the pit to be pumped out.” He said that
did not mean the pump was malfunctioning, but, rather, that
the pump “was never required to run because the sump never
filled with enough water to trigger the float switch.”
(e) The Kulas
(i) Water Intrusion
Mark described the extent of the disclosed 2014 water intru-
sion, saying that “we had quite a rainy season [during spring
to early in the summer], and all [of a] sudden we noticed the
carpet in the northeast corner of the house . . . was starting to
get damp.” He stated that “as the rains continued, the damp-
ness kind of traveled down along the wall.” The northeast
corner was where the “living area” of the downstairs was
with the “couch, TV and everything.” He testified that the
leakage first occurred “a little bit down the wall. So it would
have been down east a little bit on the north wall is where we
first noticed it” and that the leakage “started creeping . . . and
ultimately it made the little turn at the corner of the house
and started to go along the — it would be the west side of the
house a few feet.” In Mark’s deposition, he said the wetness
of the carpet “progressed to where you could push down and,
and feel the water.”
- 109 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
HUTCHISON v. KULA
Cite as 27 Neb. App. 96When asked about the Disclosure Statement’s question of
whether there had ever been water intrusion, Mark claimed
that “[he] remember[ed] responding that, yes, we had had a
water intrusion in the one area of the basement, and [he] really
didn’t know what it was caused by. Rains. I heard maybe a
sump pump. Could have been really anything.” He further
claimed that “we added an additional drain system out into,
as Jerry[’s] said, daylight, which worked.” Mark said he indi-
cated the water intrusion as “minor” because “a major water
issue would be where your whole basement would flood” and
“[t]his was, to [him], minor damage and a nuisance, yes, but it
wasn’t, to [his] definition, major.” During Renie’s deposition,
she characterized the time of the 2014 water intrusion as “the
time when [the Kulas] were having lots of water and stuff.”
At his deposition, Mark indicated he cited the neighbor’s mal-
functioning sump pump as a cause of the 2014 water intrusion
due to “neighborhood gossip [that] the neighbor’s sump pump
failed.” Renie asserted that she had “never spoken to [the
neighbor]” and that the “sump pump part of [their disclosure]
came from a neighbor across the street.”
Mark said he never experienced any pooling on the patio
on the south side of the property. Mark claimed he kept
downspout extensions attached, except sometimes during the
winter, and that he left the extensions at the property when
he moved out. He claimed that the “sump pump was work-
ing fine” and that he “did not know [the drain tile system]
was not functioning.” He said that he has two children and
one grandchild who “visited frequently” and that during their
visits, they would stay in the property’s basement. His depo-
sition testimony revealed that he used the basement areas
“[p]robably on a daily basis.” He denied ever experienc-
ing leaking with the basement window and said that “[the
window] would have been right above where the kids and
grandkid slept.”
- 110 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
HUTCHISON v. KULA
Cite as 27 Neb. App. 96(ii) Refrigerator and Garage
Door Keypad
Mark testified that the garage door keypad was working
when he moved out “[b]ecause that is how [the Kulas] actually
made [their] last exit out of there.” He claimed the refrigera-
tor was working when he moved out because the Kulas “took
[their] food immediately from that fridge over to the new
fridge in [the Kulas’] new house.” Renie testified that she
“moved out on that Sunday, would have been March 6th,”
and that when she took everything out of the refrigerator to
move it to their new home, “[a]t that time it was cool.” She
said, “There was ice cubes and everything. So at that time it
was working.”
(iii) Tree
As to the tree, Mark remembered that when the Hutchisons
did a walk-through inspection of the property in November
2015, he mentioned the tree “had lost its leaves early but that
it was still green when you scratched it.” Mark claimed that
a lot of trees had been “stressed out because of all the water”
and that he did not know if the tree was “going to come back
in the spring or not.” He alleged that he told Charles this con-
cern and that if the tree did not come back, he would replace
it. Mark admitted he did not know if the tree was stressed or
diseased; he claimed that “[the tree] did not appear diseased
to [him]” and that, in his opinion, “[s]tressed is not diseased.”
Renie testified that she had “gone out there [to the tree] many
times” and that “[her] father worked for Earl May for 40-some
years and [she] did a lot of work with him, and he always
taught [her] to go out and scrape to see if a tree was green; that
it was still living.” At her deposition, Renie admitted that “the
tree was stressed.”
4. District Court’s Decision
Following the bench trial, the district court filed an
“Opinion and Order” in which it found the Kulas liable for
- 111 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
HUTCHISON v. KULA
Cite as 27 Neb. App. 96damages. The court found that the representations made by
the Kulas in their Disclosure Statement were not accurate
and not set forth to the best of their knowledge with regard
to water intrusion issues. The court also found that the Kulas
did not complete the Disclosure Statement to the best of
their knowledge “with respect to the diseased or dead tree,
garage door keypad, refrigerator, and leaking windows.” The
court stated, “It is clear that [the Kulas] did not complete the
[Disclosure Statement] to the best of their knowledge and/
or update it accordingly.” The district court went on to find
that the Hutchison’s also proved fraudulent misrepresentation,
negligent misrepresentation, and fraudulent concealment. The
district court awarded the Hutchisons a judgment of $16,774,
plus costs and $10,000 in attorney fees.
III. ASSIGNMENTS OF ERROR
The Kulas claim that the district court erred in determining
the evidence was sufficient to hold them liable for (1) violat-
ing § 76-2,120, (2) fraudulent misrepresentation, (3) fraudulent
concealment, and (4) negligent misrepresentation.
The Hutchisons claim on cross-appeal that the district court
erred in “not awarding all of the [Hutchisons’] reasonable
attorney fees.”
IV. STANDARD OF REVIEW
[1-3] 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. Eicher v. Mid America Fin.
Invest. Corp., 275 Neb. 462, 748 N.W.2d 1 (2008). An appel-
late court will not reevaluate the credibility of witnesses or
reweigh testimony but will review the evidence for clear error.
Id. Similarly, 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. Id.[4] In reviewing a judgment awarded in a bench trial of a
law action, an appellate court does not reweigh evidence, but
- 112 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
HUTCHISON v. KULA
Cite as 27 Neb. App. 96considers the evidence in the light most favorable to the suc-
cessful party and resolves evidentiary conflicts in favor of the
successful party, who is entitled to every reasonable inference
deducible from the evidence. Id.V. ANALYSIS
1. Sufficiency of Evidence
[5] The Kulas “do not dispute the evidence adduced at trial”
and do not request this court “to set aside any factual find-
ing made by the trial court.” Reply brief for appellants at 10.
Rather, the Kulas challenge the sufficiency of the evidence to
support the district court’s conclusion as to the four theories
of recovery set forth in the Hutchisons’ operative complaint:
violation of § 76-2,120, fraud and material misrepresentation,
fraudulent concealment, and negligent misrepresentation. We
note that although the operative complaint refers to separate
causes of action, the allegations all arise out of the same
operative facts and involve the same parties, and therefore
constitute separate legal theories rather than separate causes of
action. See Poppert v. Dicke, 275 Neb. 562, 747 N.W.2d 629(2008) (two or more claims in complaint arising out of same
operative facts and involving same parties constitute separate
legal theories, of either liability or damages, and not separate
causes of action).
(a) § 76-2,120
[6] We begin with a review of § 76-2,120, which requires
in subsection (2) that each seller of residential real property
located in Nebraska shall provide the purchaser with a written
disclosure statement of the real property’s condition. Section
76-2,120 further provides:
(5) The disclosure statement shall be completed to the
best of the seller’s belief and knowledge as of the date
the disclosure statement is completed and signed by the
seller. If any information required by the disclosure state-
ment is unknown to the seller, the seller may indicate
- 113 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
HUTCHISON v. KULA
Cite as 27 Neb. App. 96that fact on the disclosure statement and the seller shall
be in compliance with this section. On or before the
effective date of any contract which binds the purchaser
to purchase the real property, the seller shall update the
information on the disclosure statement whenever the
seller has knowledge that information on the disclosure
statement is no longer accurate.
If a conveyance of real property is not made in compli-
ance with § 76-2,120, the purchaser shall have a cause of
action against the seller and may recover the actual damages,
court costs, and reasonable attorney fees. See § 76-2,120(12).
However, “[t]he seller shall not be liable under [§ 76-2,120]
for any error, inaccuracy, or omission of any information
in a disclosure statement if the error, inaccuracy, or omis-
sion was not within the personal knowledge of the seller.”
§ 76-2,120(8). See, also, Bohm v. DMA Partnership, 8 Neb.
App. 1069, 1078-79, 607 N.W.2d 212, 219 (2000) (to state
cause of action under § 76-2,120, “the buyer must plead and
prove either that the seller failed to provide a disclosure state-
ment or that the statement contained knowingly false disclo-
sures by the seller”).
The Kulas generally claim that evidence was insufficient
to prove that they had actual knowledge of “some error,
inaccuracy, or omission in the [Disclosure Statement]” as to
each alleged property issue. Brief for appellants at 10. They
contend that they testified as to their belief of the Disclosure
Statement’s accuracy. The Kulas argue that the Hutchisons
speculated that “‘because they experienced “X”, then [the]
Kulas must have had knowledge of some undisclosed condi-
tion,’” id., citing that in R.J. Miller, Inc. v. Harrington, 260
Neb. 471, 618 N.W.2d 460 (2000), “circumstantial evidence
alone [was found as] insufficient to impute knowledge to the
seller for purposes of . . . § 76-2,120.” Brief for appellants
at 10.
It is obviously difficult to prove what someone may or
may not have known at a particular point in time. In such
- 114 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
HUTCHISON v. KULA
Cite as 27 Neb. App. 96circumstances, consideration of conflicting or inconsistent evi-
dence and the credibility of witness testimony is significant.
We will therefore consider the district court’s findings and
conclusions as to each identified problem, keeping in mind
that the trial court is the sole judge of the credibility of the
witnesses and the weight to be given to their testimony. See
Eicher v. Mid America Fin. Invest. Corp., 275 Neb. 462, 748
N.W.2d 1 (2008). Further, the trial court’s factual findings in
a bench trial of an action at law have the effect of a jury ver-
dict and will not be set aside unless clearly erroneous. Id. We
will also consider the evidence in the light most favorable to
the Hutchisons and resolve evidentiary conflicts in their favor
because they are entitled to every reasonable inference deduc-
ible from the evidence. See id.(i) Water Intrusion
Regarding the 2014 water intrusion disclosure, the Kulas
contend that they attributed the water intrusion they experi-
enced to several potential causes, including “‘heavy rains,
nei[g]hbor[’]s sump pump not working, etc.’” Brief for appel-
lants at 11. They rely on Burgess v. Miller, 9 Neb. App. 854,
621 N.W.2d 828 (2001), to support their argument that their
explanations of “the cause of the water intrusion problems they
disclosed is not sufficient to prove they had actual knowledge
of some undisclosed condition.” Brief for appellants at 11. The
Kulas cite to both R.J. Miller, Inc. v. Harrington, supra, and
Burgess v. Miller, supra, to advance their position; we find
both cases distinguishable, as discussed next.
In R.J. Miller, Inc. v. Harrington, supra, the purchasers
brought an action against vendors to recover repair costs
incurred for structural damages to a building purchased from
the vendors. The purchasers alleged that the vendors failed
to provide a disclosure statement as required by § 76-2,120
and that the purchasers suffered damages as a result of the
undisclosed defects. Significant in that case, the vendors admit-
ted during the purchasers’ inspection of the property that the
- 115 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
HUTCHISON v. KULA
Cite as 27 Neb. App. 96building had experienced water damage in the past, but it was
believed installation of a rubber roof corrected the problem.
Also, the purchasers were not aware of any structural dam-
age to the alleged defective wall until 7 months after they had
taken possession of the property, and an engineer who testi-
fied for the purchasers was unable to say what the condition
of the wall was at the time of the transaction. The purchasers
also admitted it had rained during the summer months without
causing any water problems. The Nebraska Supreme Court
pointed out that structural damage in September 1997 did not
prove the defects existed at the time of contract in November
1996. Therefore, the Supreme Court concluded that the district
court properly found the vendors had no actual knowledge of
the building’s defects.
This court also addressed a purchaser’s action under
§ 76-2,120 against sellers of residential real property to
recover for alleged water damages incurred in that residence
in Burgess v. Miller, supra. The sellers had purchased the resi-
dence in 1993 from a prior owner; before that purchase, the
sellers obtained an independent inspection of the property, of
which the inspection report revealed, “‘Evidence of seepage-
stains on north wall mainly at the northwest corner of the base-
ment.’” Burgess v. Miller, 9 Neb. App. at 856, 621 N.W.2d at
831. In March 1997, the sellers completed a disclosure state-
ment in preparation of selling the residence; to the question,
“‘Has there ever been leakage/seepage in the basement or
crawl space? If yes, explain in Comment Section,’” the sellers
answered no. Id. at 857, 621 N.W.2d at 831. One seller testi-
fied that he answered that way because he had not experienced
any water leakage or seepage in the basement.
The purchaser agreed to buy the residence from the sell-
ers in April 1997. After the purchaser received the sellers’
disclosure statement, she obtained an independent inspection
of the home (sellers’ 1993 inspection report was not provided
to the purchaser at the time of purchase). The 1997 inspec-
tion report stated, “‘Evidence of past moisture seepage noted
- 116 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
HUTCHISON v. KULA
Cite as 27 Neb. App. 96at the northwest basement corner under the built-in cabinets.
. . .’” Id. Thereafter, the purchaser sought an explanation
from the sellers by way of providing them with a copy of
an “‘Inspection Addendum Response’” that asked: “‘Explain
seller’s statement on [the disclosure statement form which]
states No leakage/seepage in the basement,’” and pointed
out that the inspection revealed water damage, and “‘Have
they made repairs due to water damage?’” Id. at 857-58, 621
N.W.2d at 832. The sellers responded they had never experi-
enced leakage/seepage in the basement while living there but
they could “‘speculate downspout left off once under previous
owner to cause spot.’” Id. at 858, 621 N.W.2d at 832. The pur-
chaser went forward with the purchase, and after taking pos-
session in May 1997, the purchaser encountered water issues
in the basement.
At trial, the county court granted the seller’s motion for
directed verdict, noting the lack of testimony to support the
purchaser’s claims. The judgment was affirmed on appeal
to the district court. On appeal to this court, we concluded
that the sellers did not complete the initial disclosure state-
ment to the best of their belief due to their prior personal
knowledge about seepage stains from their 1993 inspection
report. However, “[b]ased upon the language contained in the
inspection obtained by [the purchaser], her ensuing inquiry in
the inspection addendum, and the response by the [sellers],
[this court found] that the [sellers] completed the addendum
response to the best of their knowledge and belief.” Burgess
v. Miller, 9 Neb. App. 854, 864, 621 N.W.2d 828, 835 (2001).
We concluded that the motion for directed verdict was prop-
erly granted, since the addendum to the disclosure statement
disclosed the condition of the basement to the best of the sell-
ers’ belief and knowledge.
We find the two cases discussed above to be distinguish-
able from this case for the following reasons: The Hutchisons
alleged that immediately after they moved in, there was water
leaking during rains. Additionally, Charles testified, and
- 117 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
HUTCHISON v. KULA
Cite as 27 Neb. App. 96exhibit 5 generally provided, that the Hutchisons experienced
several water intrusions in the basement “every time it rained”
from March 26, 2016, until Jerry’s performed remedial work
on August 22 or 23. See R.J. Miller, Inc. v. Harrington, 260
Neb. 471, 618 N.W.2d 460 (2000) (purchasers unaware of
alleged damage until 7 months after possession of property
and admitted it had rained during summer months without
causing any water problems). It is true that the Hutchisons
testified based on their personal beliefs that the Kulas’ dis-
closure regarding the water intrusion was false, or generally
inaccurate and incomplete, and that their photographs con-
tained in exhibit 8 depicting the extent of water damages were
taken only during their possession of the property. However,
the Hutchisons bolstered such testimony and evidence through
their expert, Lauritsen, which presents another distinguishing
situation. See, R.J. Miller, Inc. v. Harrington, supra (engineer
unable to testify as to condition of defective wall at time of
transaction); Burgess v. Miller, supra (purchaser offered no
evidence to support her belief that sellers had water seepage
or leakage in past, were aware of it, and hid such informa-
tion from her at time of sale). The Hutchisons also introduced
evidence of home inspection reports; as explained below, the
second inspection report contained the inspector’s opinion of
long-term water intrusion issues.
Charles testified that the home inspector did not note any
water intrusion issues after the first inspection, which was
obtained prior to closing; exhibit 3, the inspection report
summary dated January 21, 2016, confirms his testimony. See
Burgess v. Miller, supra (inspection report retained by pur-
chaser did reveal evidence of seepage stains). But the same
home inspector returned on April 27 to perform a second
home inspection, which was obtained after closing. Exhibit
4, the second inspection report, revealed that there were exte-
rior drainage and grading issues and that “all exterior[] areas
were frozen and concealed by snow cover during original
inspection [in January].” The inspector saw “ongoing water
- 118 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
HUTCHISON v. KULA
Cite as 27 Neb. App. 96intrusion through [the] window frame” and noted “[a]ctive
dampness” on carpeting in the basement “Rec room,” rust
stains “originally concealed by [the Kulas’] furnishings,” and
dampness and standing water elsewhere in the basement. The
inspector was of the opinion that efflorescence staining on
concrete floor slabs in the furnace room was “an indication
of previous (long term) water intrusion issues through floor
slabs due to over saturation or possible high water table.” The
inspector also noted that it appeared the “originally installed
drain tile system may not [be] functioning as originally
designed and has been this way for some time.”
This case is further unlike Burgess v. Miller, 9 Neb. App.
854, 621 N.W.2d 828 (2001), where the sellers’ addendum
explicitly indicated they were speculating about a cause as to
what happened prior to the seller’s possession of the home. In
this case, the Kulas provided a disclosure about a water intru-
sion that happened during their own possession of the prop-
erty. Such disclosure cannot be characterized as speculation
given its declarative tone; further, we note the district court’s
undisputed factual findings as to the water intrusion and leak-
ing window issues:
[E]vidence and testimony reflected that there were mul-
tiple areas of water infiltration that happened during each
rainfall after [the Hutchisons] took possession and moved
into the Property. [Lauritsen] testified that [the Kulas]
would have experienced the same water intrusions as [the
Hutchisons], given that the water table had not changed,
and rainfall was not significantly different. [Lauritsen]
further testified that there is “[a] pattern of long term
water intrusion dating back to the [Kulas’] ownership
including multiple points of entry and water damage.” . . .
. . . [A]lthough [the Kulas] stated that the “minor”
water seepage that occurred in 2014 was the result of
a neighbor’s malfunctioning sump pump, the testimony
was less than convincing in that regard. At trial, when
asked why [the Kulas] gave the malfunctioning sump
- 119 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
HUTCHISON v. KULA
Cite as 27 Neb. App. 96pump as a reason for water intrusion, [Mark] stated
that he had no theory on that issue and was just repeat-
ing “neighborhood gossip.” [Renie] testified that the
water seepage problem occurred as a result of the sump
pump of the neighbor to the north . . . . [The neighbor],
however, testified that she had never had a sump pump
malfunction, never told [the Kulas] that she had, and that
she had spoken with [Renie] in 2014 about the water
problems that they were having.
The . . . water intrusion issues in 2014 were not minor
and were not limited to the NE corner of the basement.
Testimony . . . indicated that [the Kulas] were having
“. . . lots of water and stuff. . .” that started in the north-
east corner and then spread over time, progressing along
the north wall to the west about 15 feet as time went by. It
also progressed along the west wall about five (5) feet to
the south. See, Exhibit #8. It is apparent that [the Kulas]
were aware that the water intrusion(s) in the basement
were not minor and were not solely, if at all, attributable
to the neighbor’s malfunctioning sump pump.
[The Kulas] also provided . . . that they “added addi-
tional drain system.” See, Exhibit #1. At trial, however,
the evidence reflected that there was no installation of an
additional drainage system. Rather, there was an exten-
sion to the existing external drain tile.
....
. . . Evidence and testimony received at trial estab-
lished that there was a steady stream of leaking along
the entire top of one of the basement windows.
The factual findings show that the Kulas knew that dur-
ing the 2014 water intrusion, water was not limited to the
northeast corner of the basement as asserted on the Disclosure
Statement. We defer to the district court’s findings that the
2014 water intrusion was “not minor” and that the Kulas’
testimony attributing that water intrusion to a neighbor’s mal-
functioning sump pump was not convincing. The district court
- 120 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
HUTCHISON v. KULA
Cite as 27 Neb. App. 96noted the disclosure of an “‘added additional drain system’”
and found that evidence showed that there was no such instal-
lation. Exhibit 11, Jerry’s invoice to the Kulas for basement
work in August 2014, confirms that finding. Exhibit 11 reflects
that the Kulas had knowledge that they did not add an addi-
tional drain system, but, instead, that they paid for the other
option proposed to them in the accompanying bid sheet.
Further, the district court noted evidence, including
Lauritsen’s opinion, which reflected that the Kulas had to
know the property was subjected to a history of multiple
water intrusions rather than the one-time intrusion disclosed.
Lauritsen’s report noted water in multiple points of the base-
ment and water entering the basement window as signs of a
pattern of long-term water intrusion dating back to the Kulas’
possession of the property. Additionally, as described previ-
ously, the second home inspection report explained why cer-
tain water intrusion issues were not discovered during the first
home inspection and included an opinion of long-term water
intrusion issues.
(ii) Garage Door Keypad
and Refrigerator
The Hutchisons took possession of the property on March 7,
2016. Charles testified that from the time they moved into the
property, the garage keypad entry did not work. He claimed
that when Mark came over on May 11, Mark “admitted to
[Charles] that there had been problems in the past with the
keypad.” “He did not say it was not working but they had had
problems with it.” Mark suggested that Charles change the
batteries; “[h]e did not seem surprised that the keypad was
not working.” The Kulas testified that the garage door keypad
was working when they moved out; according to Mark, that
is how the Kulas “actually made [their] last exit out of there.
We . . . punched the code, garage door shut, closed the pad,
and that was our final exit.” Mark did acknowledge that about
- 121 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
HUTCHISON v. KULA
Cite as 27 Neb. App. 96“60 some days later” Charles contacted him regarding prob-
lems with the home and that Mark visited the home to look at
the problems.
Regarding the refrigerator, Charles testified that as soon
as they moved into the house in March 2016, the food “just
never got cold.” Charles stated, “[T]he refrigerator doesn’t get
cold, and the only thing that’s changed is title to the house.”
The Hutchisons had a repairman diagnose the problem on
March 26; a fan motor was ordered and installed a week or
so later and the refrigerator has worked since then. Although
Charles could not say the Kulas knew that the refrigerator was
not working, he could “say for a fact . . . that it didn’t work
when we took possession.” However, Renie testified that she
“moved out on that Sunday, would have been March 6th,”
and that when she took everything out of the refrigerator to
move it to their new home, “[a]t that time it was cool.” She
said, “There was ice cubes and everything. So at that time it
was working.”
The district court found that the Kulas did not complete the
Disclosure Statement “to the best of their knowledge” with
respect to the garage door keypad and refrigerator. The court
stated that “[Mark] Kula testified that there had been problems
with the garage keypad when he came out to the property on
May 11th. Similarly, when [the Hutchisons] took possession of
the Property, the refrigerator was not working.”
We note that the district court made an error when find-
ing that Mark testified that there had been problems with
the garage keypad when he went to the property on May 11,
2016. We are unable to find any place in Mark’s trial or depo-
sition testimony where he admitted to making this statement.
Rather, it was Charles who testified that Mark “admitted to
[Charles] that there had been problems in the past with the
keypad.” “He did not say it was not working but they had
had problems with it.” We conclude that although the district
court mistakenly attributed the statement to Mark rather than
Charles, there was nevertheless evidence the court could
- 122 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
HUTCHISON v. KULA
Cite as 27 Neb. App. 96rely upon that Mark acknowledged having problems with
the keypad.
Although there is conflicting evidence as to the Kulas’
knowledge about problems related to the garage door key-
pad and the working condition of the refrigerator, it was not
clearly erroneous for the district court to disbelieve the Kulas’
testimony as to these problems. When considering the Kulas
moved out immediately before the Hutchisons moved into
the home, the Hutchisons’ testimony that these items were
not working immediately upon moving in is sufficient for the
trial court to conclude the Kulas had to have had knowledge
of the problems. In fact, according to Charles, Mark admitted
to past problems with the garage door keypad. And whether a
refrigerator is working on one day but not the next is a factual
determination dependent upon the believability of the wit-
nesses; such determinations are properly left to the trial court.
Further, in our review, we consider the evidence in the light
most favorable to the Hutchisons; evidentiary conflicts should
be resolved in their favor because they are entitled to every
reasonable inference deducible from the evidence. See Eicher
v. Mid America Fin. Invest. Corp., 275 Neb. 462, 748 N.W.2d
1 (2008).
(iii) Diseased or Dead Tree
Regarding the tree at issue, the district court found:
[The Kulas] had scraped the tree repeatedly to see if the
bark was green, but testified that they would have to
wait until the fall or spring to see if the tree would sur-
vive. [Mark] Kula testified that he offered to compensate
[Charles] Hutchison prior to purchase if the tree did not
survive. [Charles], however, disputed that any such con-
versation took place; it was his contention that if [Mark]
had discussed the diseased tree with him, he would have
asked for additional compensation . . . .
We also note that Mark testified he did not know if the tree
was “going to come back in the spring or not.” Renie admitted
- 123 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
HUTCHISON v. KULA
Cite as 27 Neb. App. 96during her deposition that the tree was having difficulties and
that the Kulas had noticed leaves had fallen off the tree early,
“which is a good sign a tree is in stress, [so that one would]
have to wait until later in the fall or spring to see if that tree’s
going to make it.” Given the Kulas’ knowledge that the tree
was stressed and could possibly not survive past closing, they
should have placed a checkmark under “Do Not Know” rather
than under “No” on the Disclosure Statement as to whether
the tree was diseased or dead. The checkmark under “No” was
not an accurate representation of their knowledge regarding
the tree.
(iv) Summary of Violations
Under § 76-2,120
Based on the foregoing, we find no clear error in the dis-
trict court’s findings and conclusion that the Kulas violated
§ 76-2,120 with their disclosures related to the matters dis-
cussed above because they did not complete the Disclosure
Statement to the best of their belief and knowledge as of the
date it was completed and signed, and as they were otherwise
required by law to update before closing on the property. See
§ 76-2,120(5).
(b) Other Theories of Recovery
[7] We need not address the other pled theories of recov-
ery given our decision that the award for damages is sup-
ported by the district court’s determination of violations under
§ 76-2,120. See Rush v. Wilder, 263 Neb. 910, 644 N.W.2d
151 (2002) (appellate court is not obligated to engage in analy-
sis which is not needed to adjudicate case and controversy
before it).
2. The Hutchisons’ Cross-A ppeal
on Attorney Fees
On cross-appeal, the Hutchisons claim the district court
awarded “only part of [their] attorney fees” and that they are
entitled to “all reasonable attorney fees.” Brief for appellees
- 124 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
HUTCHISON v. KULA
Cite as 27 Neb. App. 96at 46. They point to exhibit 40, which is an affidavit of their
counsel showing $19,470.25 in attorney fees as of the date of
the affidavit on July 12, 2017, with expected additional fees of
$2,200 through trial. Exhibit 40 contains 15 itemized invoices
dated from May 31, 2016, through July 5, 2017.
[8,9] 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. See
Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751(2009). Attorney fees are authorized by statute in the pres-
ent matter. Section 76-2,120(12) states, in relevant part, “If a
conveyance of real property is not made in compliance with
this section, the purchaser shall have a cause of action against
the seller and may recover the actual damages, court costs,
and reasonable attorney’s fees.” The Nebraska Supreme Court
held that “attorney fees are mandatory in an action under
§ 76-2,120(12).” Pepitone v. Winn, 272 Neb. 443, 449, 722
N.W.2d 710, 714 (2006). However, the Nebraska Supreme
Court did not state that the total amount of attorney fees
requested had to be awarded. Although attorney fees were
required to be awarded in this case, the amount constituting
reasonable attorney fees remained discretionary to the dis-
trict court.
[10] 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.
McGill v. Lion Place Condo. Assn., 291 Neb. 70, 864 N.W.2d
642 (2015). The district court cited to exhibit 40 when it
stated that it found that an award of “reasonable attorney fees”
was warranted; thus, the record reflects that the district court’s
award was based upon a review of the pertinent evidence.
Based on the record before us, we cannot say the district court
abused its discretion by awarding $10,000 in attorney fees
rather than the full amount requested.
- 125 -
Nebraska Court of A ppeals A dvance Sheets
27 Nebraska A ppellate R eports
HUTCHISON v. KULA
Cite as 27 Neb. App. 96We note that the Hutchisons also make a cursory request in
their brief for attorney fees on appeal. However, said request
does not comply with Neb. Ct. R. App. P. § 2-109(F) (rev.
2014), and therefore, we do not consider it here.
VI. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court.
A ffirmed.
R iedmann, Judge, participating on briefs.