JADE E. ROBINSON and SHANNON K. ROBINSON, Plaintiffs-Appellees,
WILLIAM A. WELP and JOYCE A. WELP, Defendants-Appellants.
from the Iowa District Court for Marshall County, Steven J.
sellers appeal from the district court's ruling finding
they breached their duty to disclose a snake problem in the
home and awarding the home buyers damages and attorney fees;
home buyers cross-appeal the court's determination the
sellers did not breach a duty in failing to disclose a pool
leak and the reduction of their requested award of attorney
S. Kaplan of Kaplan & Frese, LLP, Marshalltown, for
M. Borg and Melissa A. Schilling of Dickinson, Mackaman,
Tyler & Hagen, P.C., Des Moines, for appellees.
by Potterfield, P.J., and Doyle and May, JJ.
Potterfield, Presiding Judge.
and Shannon Robinson purchased the home of William and Joyce
Welp. The Robinsons later initiated suit against the Welps,
claiming the Welps failed to disclose a number of known
problems with the home. The district court determined the
Welps had a duty to disclose a snake problem pursuant to Iowa
Code chapter 558A (2016) and the purchase agreement, which
they breached; the court awarded the Robinsons damages in the
amount of $64, 216.42 and costs and attorney fees of $55,
appeal, the Welps challenge the district court's ruling,
arguing the evidence does not support that there was a snake
problem while they owned the home or that they had actual
knowledge of any such problem. In the alternative, they argue
newly-discovered evidence presented in their post-judgment
petition to vacate requires that the court's judgment be
vacated or modified. Additionally, they contest the district
court's determination of "reasonable attorney
fees," maintaining the award of fees should be further
cross-appeal, the Robinsons maintain the district court
should have also determined that the Welps failed to properly
disclose leaks in an in-ground pool; they ask for additional
damages. They also urge us to find that the district court
abused its discretion in reducing their attorney-fee request
and ask for an award of appellate attorney fees.
Background Facts and Proceedings.
Welps listed the property at issue for sale in 2014. After
touring the property a few times, the Robinsons made a
full-price offer on the home for $185, 000 in late August
2014. The offer form included a requirement that the
"Seller or Seller's Agent . . . deliver a written
disclosure statement to Buyer prior to accepting an
offer." Additionally, paragraph 8b provided:
"Seller and Buyer acknowledge that the Seller of the
real property has a legal duty to disclose MATERIAL ADVERSE
FACTS and MATERIAL DEFECTS of which Seller has actual
knowledge and which a reasonable inspection by Buyer would
not reveal." It also included a provision that entitled
either the buyer or the seller to costs and attorney fees
from the "party at fault."
Welps filled out a disclosure form. One of the questions on
the form asked, "Is there a problem with mice, bats,
snakes, spiders, roaches, etc?" The form provided boxes
to mark for "Yes," "No," or
"Unknown," and included a space to explain the
"yes" answer. The Welps marked "No."
Shannon Robinson signed the acknowledgment as purchaser. The
Welps accepted the Robinsons' offer in a purchase
agreement signed by the Welps as sellers and by Shannon
Robinson as purchaser.
closing was not scheduled to take place until October, the
Welps allowed the Robinsons to move into the home a few weeks
early. Two or three days after moving in, the Robinsons found
two large bull snakes in the home-a four-foot long snake
downstairs on top of the bar and a second snake on the first
floor of the home. The Robinsons, through their realtor,
contacted the Welps about the snakes, and the Welps agreed to
pay for professional pest control to come to the home. The
Welps did not amend the disclosure for the home and did not
otherwise inform the Robinsons of any history of snakes.
closing took place as scheduled in October.
Robinsons found another five or six bull snakes inside the
basement of their home in the spring of 2015 and an
additional three bull snakes in the fall of 2015. They found
two more in spring 2016-before construction began-and another
six or seven after. Altogether, the Robinsons estimate they
found between eighteen and twenty-two live bull snakes in the
home, including one that fell out of the drop ceiling onto
Jade Robinson's head. They also found a snake in the pool
on approximately three occasions. Additionally, they estimate
they found forty snake skins in the insulation in the walls
and drop ceilings.
spring 2016, the Robinsons hired a construction contractor,
Thomas Campbell, to remove the patio that abutted the home.
Once the concrete was removed, they found two snake nests
with the remains of a number of eggs that had been in a
hollow spot under the patio. Additionally, once the concrete
was removed, Campbell noted that although the outside of the
home was brick, beneath the doorways was neither brick nor a
wooden box sill, but rather bead board insulation. The
insulation had several holes through it into the basement of
the home, which Campbell and the Robinsons presumed was where
snakes had entered the home. Campbell put in box sills. For
the demolition and construction work, he charged the
Robinsons $7200. He also prepared an estimate for the
Robinsons, in which he stated that he could not say the snake
problem had been eradicated because it was possible there
were still snakes living in the walls and ceilings. He
stated, "The only way I can see to eradicate the problem
is to basically remove interior wall coverings on main floor
and lower level including insulation and [attic] insulation
along with [front] stoop of home." He estimated it would
cost $55, 000 to complete the work and opined that the home
would be uninhabitable for the two months the work would
early November 2016, the Robinsons offered to rescind the
sale of the property; the Welps refused to take the property
back. The Robinsons then filed a lawsuit against the Welps,
alleging that by not disclosing the snake problem or an issue
with the in-ground pool leaking, the Welps breached both the
requirements of the purchase agreement and the statutory
requirement to disclose pursuant to Iowa Code chapter 558A.
Based on the purchase agreement, the Robinsons also claimed
the right to recover reasonable attorney fees and costs
incurred in litigating the action.
matter proceeded to a two-day bench trial in October 2017. At
trial, William Welp testified he owned and lived in the
property at issue from 1982 to 2014. Joyce lived in the home
with him from 2003 until 2014. During the years he lived in
the home, there were five times Mr. Welp found or knew
someone else found a snake in the home. Additionally, he saw
three or four snakes outside on the property each year, and
other snakes made their way into the in-ground pool located
on the property. Mr. Welp also testified about the
pest-control measures he undertook while living in the home,
including hiring a pest control specialist to spray the home
for bugs four times annually, placing mouse traps and mouse
bait in the home and garage, and applying insecticide in the
yard and against the foundation of the home. During his
deposition, Mr. Welp admitted that he undertook the pest
control in an attempt to prevent snakes in and around the
home, as he was deathly afraid of them.
Robinson testified about the snakes she and her husband had
found in the home; with the most recent snake being found in
January or February 2017. She also testified about how the
family was unable to use the pool in 2015 because it
consistently lost water, which made it difficult to keep the
ratio of chemicals in balance. They had completed some
repairs to the pool but believed there were others that still
needed to be done. She testified they had made an offer on
another home because they no longer felt able to live at the
property in question.
realtor the Robinsons worked with in buying the property in
question also testified; she opined the home was "not