Silver v. Barner

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.