IN THE SUPREME COURT OF IOWA

No. 20–0195 

Submitted October 21, 2021—Filed April 29, 2022 

DANIELLE PUTMAN,

Appellant, 

vs. 

SHAWN J. WALTHER and AMY M. WALTHER,

Appellees. 

On review from the Iowa Court of Appeals. 

Appeal from the Iowa District Court for Black Hawk County, Kellyann 

Lekar, Judge. 

The plaintiff in a misrepresentation case involving the seller disclosure in 

a home sale appeals the district court’s grant of summary judgment in favor of 

the defendants. DECISION OF COURT OF APPEALS VACATED; DISTRICT 

COURT JUDGMENT REVERSED AND REMANDED. 

Appel, J., delivered the opinion of the court, in which all justices joined. 

Patrick C. Galles of Correll, Sheerer, Benson, Engels, Galles & Demro 

P.L.C., Cedar Falls, for appellant. 
2 

Matthew M. Craft of Dutton, Daniels, Hines, Kalkhoff, Cook & Swanson, 

P.L.C., Waterloo, for appellees. 
3 

APPEL, Justice. 

A few months after a buyer purchased a home, the buyer discovered water 

in the basement. The buyer contacted a contractor who inspected the basement, 

found evidence of past water events, and submitted a bid for the needed repairs. 

In the next couple of months, four additional events of water infiltration in the 

basement occurred and continued thereafter. 

The buyer sued the sellers, her real estate agent, the seller’s real estate 

agent, and a home inspector, claiming that they had misrepresented the 

condition of the house prior to her purchase. The defendants moved for summary 

judgment based on the failure of the buyer to designate an expert on causation 

and damages. The district court granted summary judgment and the buyer 

appealed. We transferred the case to the court of appeals, which affirmed the 

district court. 

Based on our review of the record and applicable rules, we conclude that 

the buyer offered sufficient evidence to survive the defendants’ motion for 

summary judgment. We therefore vacate the decision of the court of appeals, 

reverse the district court judgment, and remand the case for further proceedings. 

I. Background Facts and Proceedings. 

A. Overview of Facts. Danielle Putman was interested in purchasing a 

home in Waterloo from Shawn and Amy Walther. As required by Iowa law, 

Putman received from the Walthers a document entitled “Seller Disclosure of 

Property Condition” on February 8, 2018. The disclosure described the basement 

conditions as “2010 sewer back up [&] SW wall seepage a few times.” Putman 
4 

and the Walthers entered into a purchase agreement for the home on March 5, 

and the purchase closed as per the agreement on April 27. 

In late June or early July 2018, Putman asserts that water seeped into the 

basement of the property after two inches of rain. She states that Magee 

Construction inspected the water damage shortly after the infiltration event and 

provided her a letter signed by David Holien from Magee Construction dated 

July 19, five sets of photographs, and a bid for necessary basement repairs 

(Magee Construction documents). 

The Holien letter in the Magee Construction documents declared that 

water damage was observed in the lower level family room and bedroom. The 

letter declared that the walls of the rooms were tested with a moisture meter, 

revealing water in the drywall a foot up from the floor. The letter further noted 

that in the bedroom in the southwest corner, the floor was raised 2.5 inches off 

the concrete, “which indicates a previous water infiltration from the exterior.” 

The letter observed that an exterior wall in the vicinity of a basement window 

had been built to channel water flow on the south side of the structure. The letter 

declared that an old drain line was capped off and a cleanout was under the 

carpet and pad of the family room. The letter concluded by stating, “I do not 

know what the south wall looks like behind the drywall, but it is obvious the 

infiltration of the water/rain on June 29th which was over 2′′ according to the

US Weather Service came through this wall.” 
5 

In addition to the Holien letter, Magee Construction attached a series of 

photographs of the basement and a detailed bid to repair the damage totaling 

$11,571.48. 

After July 19, according to Putman, other instances of water infiltration in 

the basement occurred. Specifically, Putman claimed basement water infiltration 

occurred on August 6, September 4, September 19, and October 1. Further, 

according to Putman, the water infiltration in the basement continued after these 

occurrences. 

B. Putman’s Petition. Putman filed her petition in this case on 

October 25, 2018. She alleged water damage in the basement occurred in late 

June or early July and that additional water issues occurred on a frequent basis 

and damaged the home. Putman further asserted that she has been advised that 

the Walthers had a sump pit in the backyard with a pump for the purpose of 

pumping water away from the house. She additionally claimed that the 

defendants called the Waterloo water department at least twenty times for water 

issues regarding the house, including sanitary sewer issues that were not 

disclosed to her. 

Attaching a copy of the Seller Disclosure of Property Condition, Putman 

alleged that the sellers understated the problem of water seepage. With respect 

to the basement conditions, the disclosure statement only disclosed “2010 sewer 

back up [&] SW wall seepage a few times.” Putman alleged that the Walthers 

knew or should have known that the failure to disclose information about the 

persistent water infiltration in the basement would cause damage to her. She 
6 

alleged that the Walthers’ intentional and negligent misrepresentation of the 

property was a proximate cause of mental, emotional, and “financial” damages. 

Putman also alleged that: “[O]n July 16, 2018, Plaintiff contacted Magee 

Construction Company to inspect the water damage to the residence. Plaintiff 

received the attached report marked as ‘Exhibit C.’ ” 

Putman attached a copy of the Magee Construction documents to the 

original petition. Putman’s amended petition contained the same allegation but 

Putman apparently failed to attach the Magee Construction documents to her 

second petition. 

C. Course of Discovery. On March 15, 2019, the parties filed a trial 

scheduling and discovery plan with the district court. The order setting trial and 

incorporating the discovery plan required the disclosure of expert witnesses by 

Putman by June 11, 210 days before trial. The defendants served discovery on 

Putman, including interrogatories requesting Putman to identify expert 

witnesses. Notably, Putman disclosed “a representative of Magee Construction” 

as an expert witness in her discovery responses. 

D. Motion for Summary Judgment. The Walthers joined the other 

defendants in filing for summary judgment. As undisputed facts, the defendants 

collectively observed that Putman in her deposition stated that she did not know 

the cause of the water infiltration. The defendants also claimed that Putman had 

failed to designate an expert to testify in the case and had not identified any 

witnesses that could testify as to the cause of water infiltration in her home. 
7 

Putman resisted the summary judgment motion. In her resistance, she 

asserted that she disclosed in discovery “Magee Construction who viewed the site 

and provided an estimate for the cost to repair and otherwise provided 

observations as to the source of water infiltration.” Putman’s resistance asserted 

that “the Plaintiff herself can testify as to the source of water and her 

observations having lived in the home for more than a year” and that she had 

“video evidence and photos of the water to provide to the Defendants.” The 

Putman resistance further cited statements of a neighbor regarding the water 

infiltration in the basement of her residence and noted a call log of the City of 

Waterloo which “clearly indicates calls were made for storm water pumping.” 

The only evidence offered in support of Putman’s resistance to the motion 

for summary judgment was a short affidavit by Putman herself. In the Putman 

affidavit, she asserted that she had read and verified every statement contained 

in her resistance. In addition, Putman claimed that water came into the 

basement from sanitary sewer overflow, seepage through the floor and walls, and 

other unknown sources. She asserted that after the real estate transaction 

closed, she “was advised” that the Walthers had a sump pit in the backyard in 

an effort to redirect water around the house, “presumably to keep water out of 

the basement.” She further summarized the contents of the letter in the Magee 

Construction documents, noting the elevation of the floor in the finished 

basement bedroom beneath the carpeting, the presence of a drain hidden in the 

floor beneath the carpet, and watermarks on the wall behind the flooring and 

sheetrock. She asserted that the City of Waterloo continues to be active in water 
8 

management in the area. Lastly, she claimed that “it is well known” that the 

neighborhood has severe issues with sewage backup which were not disclosed 

to her prior to her purchase. 

E. Pretrial Conference. About a week before trial, the district court on 

January 3 held a pretrial conference. The district court noted that the motions 

for summary judgment were still pending but decided to proceed with the pretrial 

conference. With respect to pretrial evidentiary matters, the defendants 

challenged the late listing of a repair estimate prepared by Midwest Basement, 

and the late listing as a witness of Steve Burrell, a real estate agent who was 

prepared to testify regarding the resale value of the house in its present 

condition. Finally, the defendants challenged the admissibility of the call log of 

the City of Waterloo, asserting that Putman’s resistance to the motion for 

summary judgment did not establish an adequate foundation for the 

admissibility of the document. 

In addition, the parties at the pretrial conference discussed the Magee 

Construction documents. Notably, the defendants conceded that the Magee 

Construction documents were produced in discovery and, as a result, the 

defendants were aware of their contents. But according to the defendants, the 

Magee Construction documents don’t 

necessarily appear as a report, but as an estimate in which it 

explains the work that could be done in the home, even though it 

has not been done. We’ll have other objections at the time of trial, 

but I think the expert report is limited to anything that has not been 

produced to us. 
9 

While the defendants asked that the testimony arising from the Magee 

Construction documents be limited by the extent of disclosure, the defendants 

sought to exclude entirely any testimony from Midwest Basement or Steve 

Burrell on the ground that the sum and substance of their testimony was not 

timely disclosed. The defendants repeated their objection to “any claim for 

damages that were not disclosed or claimed in discovery and any documentation 

which was not disclosed or produced in the course of discovery.” So, the 

defendants at the pretrial conference did not object to the admissibility of the 

Magee Construction documents, but only that the testimony be limited to the 

scope of the subject matter of the documents. 

The Walthers joined “each and every one” of the arguments provided by 

the defendants. In addition, the Walthers’ counsel argued that evidence related 

to the installation and removal of a sump pit in the backyard of the home should 

be excluded under Iowa Rule of Evidence 403. Putman replied that the removal 

of the sump pit is “not disputed as a fact.” The defendants responded that the 

record lacked any testimony linking the sump pit to any damages claimed in the 

case. 

F. Order on Summary Judgment Motion. On the same day that the 

district court conducted the pretrial conference, the district court entered an 

order on the defendants’ motion for summary judgment. The district court 

granted the defendants’ motion and dismissed the case. 

In its order, the district court analyzed the defendants’ claim that 

summary judgment should be granted due to Putman’s failure to designate an 
10 

expert on causation and damages. The district court noted that Putman’s 

evidence was generally sufficient to survive summary judgment. However, the 

district court concluded that expert testimony was required on the issues of the 

cause of the water damage and cost of repair. While the district court recognized 

that Putman might have been able to testify regarding damages to personal 

property without an expert, the district court concluded that “this element of 

damages cannot be reached without first proving the issue of causation, which 

cannot be done without expert testimony.” As a result, the district court granted 

the defendants’ motion for summary judgment and dismissed the case. 

G. Issues on Appeal. Putman filed a timely notice of appeal. Putman first 

asserts that the district court improperly excluded the Magee Construction 

documents on the issues of causation and damages in its summary judgment 

analysis. Putman claimed that disclosure of Magee Construction as an expert 

was not required under Iowa Rule of Civil Procedure 1.500(2)(b) or Iowa Rule of 

Civil Procedure 1.508. In any event, Putman argued that any failure to comply 

with our expert rule should be considered harmless under Iowa Rule of Civil 

Procedure 1.517(3)(a). 

Second, assuming that the Magee Construction documents could properly 

be considered by the court, Putman asserts that she presented sufficient 

evidence of her claim under Iowa Code chapter 558A (2018) to survive summary 

judgment.1

 

1No claim on appeal is made that the district court should have considered the untimely 

disclosed evidence related to Midwest Basement or Steve Burrell. 
11 

We transferred the case to the court of appeals. The court of appeals 

affirmed. It held that expert testimony on causation and damages was required 

in the case. The court of appeals found that Putman failed to preserve in the 

district court any argument that designation of the expert was not required or 

that any shortcomings in failure to designate were harmless error. 

II. Standard of Review. 

A district court’s summary judgment ruling is reviewable for correction of 

errors at law.” Terry v. Dorothy, 950 N.W.2d 246, 249 (Iowa 2020). Summary 

judgment is appropriate if expert testimony is required to establish general 

negligence or foundational facts and such testimony is unavailable. Welte v. 

Bello, 482 N.W.2d 437, 440 (Iowa 1992) (en banc). 

III. Discussion. 

We first address the question of whether expert testimony was required for 

Putman to survive the defendants’ motion for summary judgment on either 

causation or damages. Although not specifically mentioned in her petition, 

Putman’s factual allegations tracked Iowa’s Real Estate Disclosures Act, Iowa 

Code chapter 558A.2 Under this statutory provision, a seller of real estate is 

required to provide a written disclosure statement to a potential buyer. Iowa 

Code § 558A.2. The disclosure must include “information relating to the 

condition and important characteristics of the property and structures located 

 

2Under our notice pleading approach, a pleading is sufficient if it informs the defendant 

of the incident giving rise to the claim and of the claim’s general nature. Soike v. Evan Matthews 

& Co., 302 N.W.2d 841, 842 (Iowa 1981). There is no requirement that the plaintiff allege theories 

of recovery. Tigges v. City of Ames, 356 N.W.2d 503, 507 (Iowa 1984) (en banc). 
12 

on the property.” Id. § 558A.4(1)(a). The seller has a duty to comply with 

disclosure requirements in good faith. Id. § 558A.3(1). A person who violates the 

chapter is liable for the amount of actual damages suffered by the transferee. Id.

§ 558A.6(1). 

The gist of the claim is misrepresentation. The first question is whether 

the Walthers adequately disclosed the persistent nature of the water infiltration 

problem in the basement which was known or should have been known to them. 

Jensen v. Sattler, 696 N.W.2d 582, 588 (Iowa 2005). 

The limited disclosures made by the Walthers in the disclosure statement 

were arguably misrepresentations in light of the repetitive postsale water 

invasion events and the discovery of aggressive past intervention efforts. Whether 

the Walthers misrepresented the basement conditions is within a layperson’s 

ability to decide without an expert. See Easton v. Strassburger, 199 Cal. Rptr. 

383, 393 (Ct. App. 1984) (holding issues in a claim involving real estate are 

resolvable by common knowledge and did not turn on facts within the specific 

knowledge of professional experts); Durbin v. Ross, 916 P.2d 758, 765 (Mont. 

1996) (noting an expert is not required to support a claim under a real estate 

disclosure statute); cf. Cockerton v. Mercy Hosp. Med. Ctr., 490 N.W.2d 856, 859 

(Iowa Ct. App. 1992) (holding an expert was not needed to establish the standard 

of care when a patient fell in an x-ray room, distinguishing between cases 

“requiring expert testimony to establish a deviation from an accepted standard 

of care of hospitals” and cases “where the hospital was required to exercise 

ordinary care in providing a routine service in light of the patient’s known 
13 

condition”). No liability expert was required to support the misrepresentation 

claim in this case. 

That leaves the question of whether the Walthers were entitled to summary 

judgment on the question of damages proximately caused by the 

misrepresentation because of the failure to designate an expert. There are several 

ways to calculate damages for misrepresentation, including the pecuniary loss 

suffered as a result of the recipient’s reliance upon the misrepresentation, the 

difference in the value between what was received and what was paid, and the 

lost benefit of the bargain. See Restatement (Second) of Torts § 549 (Am. L. Inst. 

1977). Iowa “recognize[s] two measures of damages for fraud cases: (1) benefit of 

the bargain plus consequential damages and (2) out of pocket expenses.” 

Midwest Home Distrib., Inc. v. Domco Indus. Ltd., 585 N.W.2d 735, 739 (Iowa 

1998). Simply stated, “a defrauded plaintiff is entitled to recover those losses 

proximately caused by reliance on the misrepresentation.” Spreitzer v. Hawkeye 

State Bank, 779 N.W.2d 726, 739 n.5 (Iowa 2009). 

Putman attempted to prove damages under the lost benefit of the bargain 

theory by offering the opinion of a real estate agent as to the diminished value of 

her home in its actual condition. However, the district court properly ruled that 

opinion inadmissible based on untimely disclosure. There is authority, however, 

for the proposition that Putman could have offered her own testimony on the 

decreased value of the property. John Thurmond & Assocs., Inc. v. Kennedy, 668 

S.E.2d 666, 669 (Ga. 2008); Kimmel v. Iowa Realty Co., 339 N.W.2d 374, 380–

81 (Iowa 1983); Holcomb v. Hoffschneider, 297 N.W.2d 210, 213 (Iowa 1980) (en 
14 

banc). Putman did not offer her lay opinion in her resistance to the motion for 

summary judgment and has not presented the question on appeal. 

But through the Magee Construction documents and her own affidavit, 

Putman put on proof that there had been and continued to be serious water 

problems going well beyond the “wall seepage a few times” reference in the seller 

disclosure. From reviewing the Magee Construction letter, one can reasonably 

infer that the June 2018 water infiltration was a continuation of prior issues and 

that the infiltration would not have occurred, nor would the need to repair it 

have arisen, had the home been as represented. 

Lastly, on the cost of repair, it is not entirely clear to us that testimony 

about the scope and cost of repairs amounts to expert testimony. A witness is 

allowed to give a lay opinion if the testimony is based on the witness’s own 

perception, helpful to determining a fact in issue, and “[n]ot based on scientific, 

technical, or other specialized knowledge within the scope of rule 5.702.” See

Iowa R. Evid. 5.701. Holien’s report based on his observation of the work he was 

asked to perform and the cost of materials and time he would charge to make 

repairs would certainly be based on his own perception. See, e.g., Whitley v. C.R. 

Pharmacy Serv., Inc., 816 N.W.2d 378, 390–91 (Iowa 2012) (allowing a 

pharmacist to testify as a lay witness about delivery log procedures when the 

procedures were within the pharmacist’s personal knowledge). The question here 

is whether the damages testimony would be “based on scientific, technical, or 

other specialized knowledge within the scope of rule 5.702. Iowa R. Evid. 

5.701(c). 
15 

We recently described the distinction between expert and lay opinion 

testimony by “[l]imiting a lay witness’s testimony to inferences drawn from facts 

using ‘reasoning familiar in everyday life’ ” rather than testimony “based on 

‘scientific, technical, or specialized knowledge’ that is outside the understanding 

of an average juror’s reasoning” in the context of interpreting information from 

cell tower records about the location of cell phones. See State v. Boothby, 951 

N.W.2d 859, 876–77 (Iowa 2020). The purpose for this distinction is to limit lay 

opinion testimony to situations where the jurors can sufficiently understand the 

underlying facts to be able to evaluate the reliability of the layperson’s opinion. 

See id. (“Limiting a lay witness’s testimony to inferences drawn from facts using 

‘reasoning familiar in everyday life’ eliminates reliability concerns because a 

juror is able to use her own reasoning to evaluate the witness’s opinion.”). 

For example, in Seasha Pools, Inc. v. Hardister, 391 S.W.3d 635 (Tex. App. 

2012), the court held that the homeowner could testify about the cost of repairs 

of a swimming pool in a breach of contract action through lay testimony and 

through bids where the issues were not technical and complex. Id. at 640–42. 

On the other hand, there is authority for the proposition that a lay witness 

cannot testify about the cost of repairs where they are extensive and technical 

in nature. Pjetrovic v. Home Depot, 411 S.W.3d 639, 649 (Tex. App. 2013). 

We need not resolve that issue today. Even if testimony about the scope 

and cost of repairs in this case does require expert testimony, we conclude that 

Putman adequately disclosed the contours of the proposed testimony of Magee 
16 

Construction.3 Putman identified Magee Construction as an expert in discovery 

and produced the Magee Construction documents. Because Magee Construction 

was not hired for purposes of litigation, an expert report was not required under 

Iowa Rule of Civil Procedure 1.500(2)(b). Instead, Putman is required to comply 

with Iowa Rule of Civil Procedure 1.500(2)(a), which requires disclosure of the 

witness and a summary of factual knowledge. See McGrew v. Otoadese, 969 

N.W.2d 311, 323 (Iowa 2022); see also Ziegler v. Easton Suburban Water Auth.,

43 A.3d 553, 556–59 (Pa. Commw. Ct. 2012) (expert report not required from a 

contractor hired to make repairs on damage to house). While Putman’s answer 

to the expert interrogatory only identified Magee Construction and did not 

provide a summary of the facts about which Magee Construction would testify, 

the Magee Construction documents attached to the original petition and 

produced in discovery provided an adequate summary of the expected testimony. 

To the extent that Putman did not fully comply with technical requirements 

under rule 1.500(2)(a), such lack of compliance was harmless in light of the 

information produced in discovery. Iowa R. Civ. P. 1.517(3)(a). 

 

3We conclude the issue of whether the Magee Construction documents should be 

considered in defeating the defendants’ motion for summary judgment was presented to and at 

least impliedly decided by the district court. In response to the defendants’ assertion that the 

plaintiff did not designate an expert witness, plaintiff in the summary judgment proceedings 

noted that Magee Construction “viewed the site and provided an estimate for the cost of repair 

and otherwise provided observations as to the source of water pollution.” Further, the district 

court order discussed the Magee Construction documents but necessarily rejected the notion 

that the evidence was sufficient to defeat defendants’ motion for summary judgment based upon 

the lack of expert testimony. Although terse and sparse, we consider the issue preserved in the 

district court’s ruling. Lamasters v. State, 821 N.W.2d 856, 864 (Iowa 2012). 
17 

For the above reasons, we conclude the district court erred in concluding 

that the defendants were entitled to summary judgment because Putman failed 

to provide expert testimony on the questions of causation and damages. 

IV. Conclusion. 

The decision of the court of appeals is vacated. The order of the district 

court granting the defendants’ motion for summary judgment in this case is 

reversed. The case is remanded to the district court for further proceedings. 

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT 

JUDGMENT REVERSED AND REMANDED.