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Robinson v. Welp

Court of Appeals of Iowa

July 3, 2019

JADE E. ROBINSON and SHANNON K. ROBINSON, Plaintiffs-Appellees,
v.
WILLIAM A. WELP and JOYCE A. WELP, Defendants-Appellants.

          Appeal from the Iowa District Court for Marshall County, Steven J. Oeth, Judge.

         Home 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 fees.

          Barry S. Kaplan of Kaplan & Frese, LLP, Marshalltown, for appellants.

          Joseph M. Borg and Melissa A. Schilling of Dickinson, Mackaman, Tyler & Hagen, P.C., Des Moines, for appellees.

          Heard by Potterfield, P.J., and Doyle and May, JJ.

          Potterfield, Presiding Judge.

         Jade 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, 212.

         On 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 reduced.

         On 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.

         I. Background Facts and Proceedings.

         The 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."

         The 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.

         Although 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.

         The closing took place as scheduled in October.

         The 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.

         In 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 take.

         In 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.

         The 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.

         Shannon 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.

         The realtor the Robinsons worked with in buying the property in question also testified; she opined the home was "not ...


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