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HINSON v. FOREHEAD

Cite as 30 Neb. App. 55

Jeremy Hinson and Kelsie Hinson, husband 

and wife, appellants, v. Cindy Forehead 

and Ambassador Real Estate Company, 

a Nebraska corporation, doing 

business as Berkshire Hathaway 

Home Services Ambassador 

Real Estate, appellees.

___ N.W.2d ___

Filed July 20, 2021. No. A-20-370.

1. Summary Judgment: Appeal and Error. In reviewing a summary 

judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, and gives 

that party the benefit of all reasonable inferences deducible from the 

evidence. An appellate court affirms a lower court’s grant of summary 

judgment if the pleadings and admitted evidence show that there is no 

genuine issue as to any material facts or as to the ultimate inferences 

that may be drawn from those facts and that the moving party is entitled 

to judgment as a matter of law.

2. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach 

an independent conclusion irrespective of the decision made by the 

court below.

3. Summary Judgment. In the summary judgment context, a fact is material only if it would affect the outcome of the case.

4. Statutes. A statute’s meaning is determined based on its text, context, 

and structure.

5. Statutes: Appeal and Error. Statutory language is to be given its plain 

and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words that are plain, direct, 

and unambiguous.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/27/2021 08:08 AM CDT
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6. Statutes: Legislature: Intent. The court, in discerning the meaning of 

a statute, should determine and give effect to the purpose and intent of 

the Legislature as ascertained from the entire language of the statute 

considered in its plain, ordinary, and popular sense.

7. Real Estate: Licensee: Agents. A licensee acting as a seller’s agent is 

required to provide to a buyer or prospective buyer written disclosure of 

adverse material facts actually known by the licensee under Neb. Rev. 

Stat. § 76-2417(3)(a) (Reissue 2018).

8. Contracts: Real Estate: Words and Phrases. Adverse material facts 

under Neb. Rev. Stat. § 76-2403 (Reissue 2018) include any fact which 

significantly affects the desirability or value of the property to a party 

and is not reasonably ascertainable or known to that party, and which 

may include, but is not limited to, a fact pertaining to any environmental hazards affecting the property required by law to be disclosed, the 

physical condition of the property, any material defects in the property, 

any material defects in the title, or any material limitation on the client’s 

ability to perform under the terms of the contract.

9. Real Estate: Licensee: Agents: Statutes. The duty of a licensee acting 

as a seller’s agent to disclose adverse material facts to a buyer or prospective buyer pertaining to a property is not limited to circumstances 

when the licensee has actual knowledge of a material defect or that the 

home needs extensive repair. Rather, the statutes contemplate whether 

the licensee knew of any facts which significantly affected the desirability or value of the property and which were not reasonably ascertainable 

or known by the buyer or prospective buyer, pertaining to the physical 

condition of the property or any material defects in the property.

10. Summary Judgment: Testimony. When the testimony of the parties is 

in conflict and credibility is a factor, summary judgment is not proper.

11. Appeal and Error. An appellate court will not consider an issue on 

appeal that was not passed upon by the trial court.

Appeal from the District Court for Douglas County: W. 

Russell Bowie III, Judge. Reversed and remanded for further 

proceedings.

Andrew M. Hollingsead, Michael J. Matukewicz, and Hattie 

K. Miller of Liakos & Matukewicz, L.L.C., for appellants.

Dan H. Ketcham and Alexander D. Struck, of Engles, 

Ketcham, Olson & Keith, P.C., for appellees.
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HINSON v. FOREHEAD

Cite as 30 Neb. App. 55

Riedmann, Bishop, and Welch, Judges.

Bishop, Judge.

I. INTRODUCTION

Jeremy Hinson and Kelsie Hinson purchased a home from 

Michael Bean and Deborah Bean in February 2018. The 

Hinsons subsequently filed a complaint against the Beans 

and several other defendants in the Douglas County District 

Court alleging the existence of significant structural issues 

related to the property which they claimed the defendants 

failed to disclose to the Hinsons. Following a stipulated 

dismissal of the Hinsons’ claims against some defendants, 

the district court granted summary judgment in favor of the 

remaining defendants, Cindy Forehead and Ambassador Real 

Estate Company, doing business as Berkshire Hathaway Home 

Services Ambassador Real Estate (Ambassador), which the 

Hinsons now appeal. We reverse the judgment and remand the 

cause for further proceedings.

II. BACKGROUND

During 2017, the Beans placed their home on the market 

and made efforts to sell the property. In October 2017, after 

several unsuccessful listings, Michael contacted Forehead, a 

licensed real estate broker affiliated with Ambassador, hoping 

to hire her to act as the sellers’ limited agent for the sale of the 

home. Forehead met with Michael at the Beans’ home later in 

October to discuss the hiring, and she was also given a tour of 

the property during this meeting. On November 18, the Beans 

and Forehead, acting on behalf of Ambassador, entered into a 

“Listing Contract” appointing Forehead as the Beans’ agent 

in the listing and sale of their home. The listing contract also 

set the listing price for the property at $469,500. Forehead 

provided to Michael an “Agency Disclosure Information for 

Buyers and Sellers” form which listed the legal duties she and 

Ambassador owed to the Beans as sellers and to prospective 

buyers, including the duty to “disclose to a buyer otherwise 

undisclosed adverse material facts about the property.” The 
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Beans also completed and provided to Forehead a “Seller 

Property Condition Disclosure Statement” (disclosure statement) that, in pertinent part, affirmed there were neither “any 

structural problems with the structures on the real property” 

nor “any moving or settling of” foundation, floor, or wall.

On November 29, 2017, Forehead listed the house for sale 

and made it available for potential buyers to tour. Forehead 

received several survey responses and other communications 

from potential buyers, some of which contained concerns about 

the condition of the Beans’ home, including some regarding 

the property’s foundation. On December 6, a potential buyer, 

Beau Starkel, requested through his agent, Melissa Boldt, 

permission to have an inspection of the home done prior to 

placing an offer, and the Beans allowed the inspection. Starkel 

thereafter hired a company named “RamJack” to inspect the 

Beans’ property. After giving Starkel permission to conduct an 

inspection, Michael provided Forehead with a report from an 

inspection conducted in May 2017 by Foundation-2-Rooftop, 

Inc. On December 14, Boldt sent an email containing the 

RamJack inspection report, estimate, and other accompanying documents to Forehead following the completion of the 

inspection. The report identified, in pertinent part, signs of 

interior water intrusion, mold, and problems with the home’s 

foundation. While Forehead confirmed that she received the 

email containing the documents, she claimed she did not open 

the email or review any of the attached documents. On January 

4, 2018, Boldt contacted Forehead with an offer of $300,000 for 

the Beans’ home, referencing that Starkel was “willing to take 

on the work that they feel needs to be done to the property” that 

included “the foundation work, replacing the rotted windows, 

and fixing damaged drywall due to water damage.” Forehead 

presented this offer to the Beans, and it was rejected without 

further negotiation.

On January 6, 2018, the Hinsons entered into a purchase agreement with the Beans to purchase the property for 

$462,500. The Beans had provided the Hinsons with a copy of 
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the disclosure statement. On January 10, prior to closing, the 

Hinsons hired Complete Inspection Services, LLC, to perform 

an inspection of the home. The report given to the Hinsons 

after the inspection noted, in pertinent part, “[e]vidence of 

cracking . . . on right exterior of home, efflorescence noted 

on front block wall in mechanical room” and recommended 

“further review by qualified contractor for any repairs necessary.” Based on this recommendation, the Hinsons hired Bruce 

Harris, an engineer affiliated with e.Construct, USA-LLC 

(e.Construct), to assess the home’s foundation. Harris’ report 

noted several issues, but concluded that “[n]othing discussed 

. . . would indicate that there are significant structural issues or 

damage to the residence.” The Hinsons and the Beans agreed 

to several addendums to the purchase agreement addressing 

final concerns in the property, including mold remediation and 

other maintenance work required before closing. The Hinsons 

and the Beans agreed to remove an addendum that included the 

Hinsons’ requests for permission to remove drywall covering a 

“foundation crack on the south wall” of the property in order 

to caulk that crack and to seal the “south wall exposed foundation . . . with waterproof sealant.” The Hinsons’ purchase of 

the property closed on February 12. After closing, Starkel came 

to the home and informed the Hinsons of the inspection report 

provided by RamJack that indicated structural defects in the 

home’s foundation.

On July 24, 2018, the Hinsons filed a complaint in the district 

court against the Beans, Forehead, Ambassador, Harris, and 

e.Construct. They alleged six theories of recovery, including 

fraudulent and negligent misrepresentation, fraudulent concealment, violations of Neb. Rev. Stat. § 76-2,120 (Reissue 2018), 

breach of fiduciary duties, and negligence. The Hinsons sought 

damages of at least $82,325 and other relief. Throughout the 

remainder of 2018 and into 2019, the Hinsons had additional 

inspections done to assess the nature and extent of the defects, 

and the Hinsons received additional estimates for the cost of 

necessary repairs.
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On December 2, 2019, the district court entered an order dismissing with prejudice the Hinsons’ claims against the Beans, 

Harris, and e.Construct pursuant to the Hinsons’ stipulation and 

agreement to dismiss the claims against those defendants.

Subsequently, Forehead and Ambassador jointly filed a 

motion for summary judgment, followed by a motion for summary judgment filed by the Hinsons. In considering the crossmotions for summary judgment, the district court entered an 

order on April 30, 2020, granting summary judgment in favor 

of Forehead and Ambassador. The court initially noted that 

the “central issue before the Court is whether Forehead had 

knowledge of an adverse material condition.” It then addressed 

whether there was a violation of Neb. Rev. Stat. § 76-2417(3)(a) 

(Reissue 2018). It stated that for a seller’s agent to be liable for 

the failure to disclose adverse material facts to a buyer under 

§ 76-2417(3)(a), “an agent must have actual knowledge of a 

material defect” in the real property. The court determined that 

Forehead did not breach her duty as the Beans’ agent to the 

Hinsons as prospective buyers, because she “did not have actual 

knowledge of a material defect” in the Beans’ home. The court 

referenced Forehead’s statement that she had not opened the 

email from Boldt containing the RamJack documents and had 

not opened the attached documents.

The district court further stated that “even if an agent is not 

required to have actual knowledge of a material defect, the 

information presented to Forehead would not have caused her 

to believe that such a defect existed.” The court decided that 

the “concerns” raised by other potential buyers about “settling and potential problems with the foundation . . . did not 

amount to facts indicating that there were major structural 

issues that would need to be addressed.” (Emphasis in original.) Identifying the numerous inspections that conflicted with 

one another and Forehead’s testimony that she only reviewed 

the report provided to her by Michael, the court determined 

that “[a] difference of opinion [among inspection reports] does 

not amount to actual knowledge of facts that would cause a 
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reasonably prudent person to believe that a material defect 

existed.” (Emphasis in original.) The court thereafter found 

that because “Forehead did not have knowledge of an adverse 

material fact, she did not breach the only duty she owed to the 

Hinsons under the circumstances” and granted summary judgment in favor of Forehead and Ambassador “as to the Hinsons’ 

claim for violation of §76-2417.”

The district court also granted summary judgment in favor of 

Forehead and Ambassador on the Hinsons’ claim that Forehead 

and Ambassador violated § 76-2,120 by having knowledge 

of an error, inaccuracy, or omission in the Beans’ disclosure 

statement concerning a structural defect actually known by the 

Beans. The court cited to its previous analysis of Forehead’s 

lack of actual knowledge and further concluded there was 

“no evidence that the Beans actually knew that the foundation 

was in need of extensive repair.” (Emphasis in original.) The 

court reasoned that since Forehead and the Beans lacked any 

knowledge of errors in the Beans’ written disclosures, neither 

Forehead nor Ambassador could be held liable for any such 

error in the written disclosures.

Finally, in considering claims of negligence and breach of 

fiduciary duty, the district court concluded that the “only duty 

owed to the Hinsons by Forehead under the circumstances 

was to disclose adverse material facts that she actually knew 

of ” and that she did not breach this duty, “because she did 

not have knowledge of the extent of repairs needed to fix 

the foundation.” (Emphasis in original.) The court went on 

to state, “Indeed, there appears to be a difference of opinion 

even among the experts as to the nature and extent of repairs 

needed.” The court concluded that since Forehead did not have 

knowledge of an adverse material fact, “she did not breach 

the only duty she owed to the Hinsons,” and that therefore, 

Forehead and Ambassador were entitled to judgment as a matter of law as to the Hinsons’ claims of negligence and breach 

of fiduciary duty.
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In its April 30, 2020, “Order on Cross Motions for Sum

mary Judgment,” the district court sustained Forehead’s and 

Ambassador’s motion for summary judgment and overruled 

the Hinsons’ motion for summary judgment. The case was dismissed with prejudice. The Hinsons timely filed this appeal.

III. ASSIGNMENT OF ERROR

On appeal, the Hinsons claim the district court erred in granting summary judgment in favor of Forehead and Ambassador 

on the Hinsons’ claim that Forehead and Ambassador breached 

§ 76-2417(3)(a) by failing to disclose to the Hinsons adverse 

material facts actually known by Forehead and Ambassador.

IV. STANDARD OF REVIEW

[1] In reviewing a summary judgment, an appellate court 

views the evidence in the light most favorable to the party 

against whom the judgment was granted, and gives that party 

the benefit of all reasonable inferences deducible from the 

evidence. Sundermann v. Hy-Vee, 306 Neb. 749, 947 N.W.2d 

492 (2020). An appellate court affirms a lower court’s grant 

of summary judgment if the pleadings and admitted evidence 

show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from those 

facts and that the moving party is entitled to judgment as a 

matter of law. Id.

[2] Statutory interpretation presents a question of law, for 

which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the 

court below. Chaney v. Evnen, 307 Neb. 512, 949 N.W.2d 

761 (2020).

V. ANALYSIS

The Hinsons claim the district court erred in granting summary judgment in favor of Forehead and Ambassador because 

the evidence presented, when construed in the light most 

favorable to the Hinsons and affording the Hinsons all reasonable inferences deducible from the evidence, created a 
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genuine issue of fact as to Forehead’s actual knowledge of 

adverse material facts pertaining to the physical condition of 

the property or any material defects in the property. Their 

assignment of error challenges only that portion of the district 

court’s decision related to the Hinsons’ claim against Forehead 

and Ambassador under § 76-2417(3)(a); we limit our review 

accordingly. We will first set forth the evidence in the record 

related to Forehead’s knowledge and then consider the evidence under the summary judgment standard.

1. Alleged Facts Related to 

Forehead’s Knowledge

(a) Forehead’s Communications With Boldt

As noted previously, Forehead engaged in correspondence 

with Boldt, who had acted as Starkel’s agent in probing a 

prospective purchase of the Beans’ home. On December 6, 

2017, Forehead spoke with Boldt over the phone. Forehead 

testified at her deposition that during this conversation, Boldt 

informed her that Starkel was interested in putting in an offer, 

but that he knew “there [was] some work that needs to be 

done, and his main concern [was] the foundation, and [he] 

wants to make sure there [was] no water damage mainly to 

the northeast corner of the house.” Boldt then asked Forehead 

whether the Beans would permit Starkel to have an inspection 

done on the house. In an email sent to Michael on December 

6, Forehead relayed the request to have an inspection done, 

noting again the concern regarding the foundation and water 

damage while also stating that Boldt’s was “the second request 

that [she has] had from an agent that wants to take someone in 

to look at the foundation and water issues.” Michael consented 

to the inspection. On December 14, Boldt called Forehead to 

inform her that a copy of the inspection report would be forwarded to her, and Boldt forwarded the report the same day 

in an email that also stated, “Attached are the estimates and 

other supporting documents for the structural inspection . . . .” 

With respect to that email from Boldt, the following exchange 
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occurred during Forehead’s deposition between Forehead and 

the Hinsons’ counsel:

Q. [by the Hinsons’ counsel:] What is Exhibit No. 4?

A. [by Forehead:] This is the e-mail that [Boldt] told 

me that she had sent to me. She called me . . . on the 

phone, and told me that she had the report, and that she 

was sending it to me.

Q. Do you recall anything else she told you about the 

report, and what she was sending you?

A. No.

Q. And when did . . . Boldt send this e-mail to you?

A. December 14th.

Q. And what did . . . Boldt say to you in the text of the 

e-mail at the top?

A. It says — and I am not sure — I am not sure. 

Attached are the estimates and other supporting documents for the structural inspection; is that what you’re 

talking about?

Q. Correct.

. . . .

A. Yes, she called me to let me know this was coming.

Q. Okay. And if you go down towards the bottom of 

the e-mail, it appears that she was actually forwarding 

you an e-mail from . . . Ram[J]ack?

A. Oh, yeah. Uh-huh.

Q. Okay. And if you look at the bottom of Page 2, 

it indicates there were nine attachments to the e-mail, 

correct?

A. It looks like there was, yes.

Q. And then the first of the attachments is actually 

entitled capital E estimate, correct?

A. On here, yes, on the piece of paper, yes.

Q. Okay. What did you do when you got Exhibit 

No. 4?

A. Well, first of all, when she called me I called the 

seller and I said, We have an inspection report back 

from the agent, . . . Boldt. And we had a conversation. I 
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don’t remember a lot of the conversation other than the 

fact that we talk about the fact that there was no offer 

with this.

Q. Okay.

A. It’s just an inspection report.

Q. Okay.

A. And [Michael] said he did not want to see it.

Q. Did you forward it to him?

A. No, I did not.

Q. So you didn’t even forward this e-mail?

A. I did not forward it to him.

Q. Did you open any of the attachments?

A. I did not open the e-mail.

Q. So based upon this e-mail, you knew that it was a 

follow-up, or it came after . . . Boldt’s client having a 

structural inspection of the property, correct?

A. Yes.

Q. And you at least read the text of the e-mail, correct?

A. I read the top part, but . . . when she called me I was 

not at my computer. I was somewhere else. She called 

me. I talked to her. She said she was sending the report.

Q. Okay. And that indicates right in the sentence there 

that there was an estimate and other support documents 

for the structural inspection, correct?

A. Yes.

Q. What’s your understanding of what . . . an estimate is?

A. My understanding is that . . . if . . . an e-mail says 

that there’s an estimate on it, that there’s a cost involved.

Q. Okay. More basic than that, what is an estimate?

A. An estimate is an estimate. If you have broken window, and someone comes out to look at it, they give you 

a price to fix it.

. . . .

Q. So here we knew that this estimate came in the 

context of a follow-up to a structural inspection of the 

property, correct?
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A. Yes.

Q. So from this e-mail without opening the attachment 

you could tell that that this engineer . . . from Ram[J]ack 

had provided some cost estimate to do some kind of 

repair . . . to the property, correct?

A. Yes.

Q. But this Exhibit 4 you did not forward to [Michael] 

at his request, correct?

A. Yes.

Q. And you did not open it, correct?

A. I did not open it.

Q. Although you knew there was an estimate attached?

A. Yes.

The RamJack report forwarded to Forehead contained the 

inspector’s observation report that read, in pertinent part:

The sever [sic] elevation changes are on the West wall 

but all the foundation walls have settlement except the SE 

back corner. Those elevations are showing zeros showing 

no settling. . . . In a few different room[s] their [sic] are 

cracks in the drywall most likely from the sever [sic] settling. The front pillar has moved away from the foundation approximately 1’ at this time. I have purposed [sic] to 

install 2 piles to stabilize and possible recovery.

On January 4, 2018, Boldt sent a followup email to Forehead, 

stating in part:

I sent over an offer for Jones Circle. The buyers are 

very interested and love the neighborhood and lot. They 

are willing to take on the work that they feel needs to be 

done to the property. Mainly the foundation work, replacing the rotted windows, and fixing damaged drywall due 

to water damage.

Forehead forwarded this email to Michael, stating that she 

received the email “with the earlier offer for $300,000” and 

that “[t]he perception by agents and their buyers is that there 

are problems with the property.” Our record does not include 
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further communications from Forehead after she informed 

Boldt that the Beans rejected the offer.

(b) Communications With Other 

Prospective Buyers’ Agents

Several other agents of prospective buyers communicated with Forehead regarding the Beans’ property. Forehead 

received an email on December 4, 2017, from an agent affiliated with Heartland Properties, Inc., reporting that “[i]t seemed 

as if there had been some settling” and that settling “scared 

the buyer.” An email sent on December 6 by an agent with 

Nebraska Realty indicated that “[w]indows in family room 

and basement on the North side of home are a concern of the 

buyer,” and Forehead testified at her deposition that this agent 

informed Forehead in a subsequent phone call that the potential 

buyers were concerned that “[t]he trim around the windows 

[had] come apart, and it look[ed] like . . . water [had] come 

into the basement around the baseboards.” On December 7, a 

different agent with Nebraska Realty sent an email, noting that 

the house “[s]eemed a little rough around the edges” in that 

there was “some decent cracking in the ceiling/walls in the 

master bedroom” in addition to “wavy floors” and indications 

of “some settling going on.” An agent with NP Dodge emailed 

Forehead on December 14, describing in part that the home 

“had some foundational issues/tilt slant in some parts.”

(c) Forehead’s Observations of Property

At her deposition, Forehead was asked whether she observed 

any conditions while touring the property. She described the 

home as “an older home” that she believed was built “[p]rior 

to 1990.” She saw that “[o]ne of the pillars [of the front porch] 

had moved slightly.” When asked if she observed anything of 

note regarding the windows along the north wall of the property, Forehead answered, “Nothing in particular. It’s an older 

house.” She recounted that she “saw settling,” but she believed 

it “typical of houses in that age category [to] have settling 
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cracks.” She recalled that the “floor sloped in the entryway” 

and also “a little bit in the kitchen.” While she remembered 

that Michael had told her about previous water damage caused 

by a broken water heater or water softener, Forehead testified 

that she did not recall seeing any other signs of water intrusion 

during her tour.

(d) Foundation-2-Rooftop Report

In the email Forehead sent to Michael on December 6, 2017, 

concerning Boldt’s request for permission to have an inspection done on the property, she also asked Michael, “Do you 

have any reports on the basement[?] I know you had an inspection once on the property. Do you have anything that you can 

share and what do you want me to tell the agent[?]” Forehead 

acknowledged that Michael provided her the Foundation-2-

Rooftop report and that she “glanced at it,” recalling “[t]ypical 

inspection things that needed to be repaired, a few things” that 

she described as “[n]othing major.” When asked whether the 

Foundation-2-Rooftop report “suggested any followup with 

engineers or contractors or others,” Forehead replied, “To the 

best of my knowledge, [the report] did not.” She recalled that 

Michael had told her “some things had been done” with respect 

to the recommendations in the report, but that she did “not 

know what.”

The Hinsons have asserted that the Foundation-2-Rooftop 

report indicated a number of issues with the property that the 

report recommended “a licensed Contractor review and repair 

as deemed necessary.” These issues included concerns such as 

a brick column on the front porch that “slid out at the bottom 

approximately 1⁄2 [inch]”; another brick column that “moved 

slightly enough to crack the brick and stoop concrete”; the 

“OSB sub-floor [that] rotted out [1 to 2 feet] along the foundation from water not being able to drain”; several windows that 

had parts of their “trim, sills, and frames rotted”; rotted areas 

in the basement subfloor; stains on the block foundation due 

to moisture damage; and floors in certain areas of the house 
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that “settled” and “slope.” Reply brief for appellants at 7-9. 

With respect to the property’s foundation, the report described 

the property’s “concrete block foundation” from the exterior 

and interior as “plumb and in good condition” with “no signs 

of structural movement.”

2. Summary Judgment

[3] Summary judgment is to be granted when there is no 

genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Wintroub v. Nationstar 

Mortgage, 303 Neb. 15, 927 N.W.2d 19 (2019). Under this 

standard of review, summary judgment is proper only when the 

pleadings, depositions, admissions, stipulations, and affidavits 

in the record disclose that there is no genuine issue as to any 

material fact or as to the ultimate inferences that may be drawn 

from those facts and that the moving party is entitled judgment 

as a matter of law. Id. In the summary judgment context, a 

fact is material only if it would affect the outcome of the case. 

Pitts v. Genie Indus., 302 Neb. 88, 921 N.W.2d 597 (2019). In 

reviewing a summary judgment, an appellate court views the 

evidence in a light most favorable to the party against whom 

the judgment is granted and gives such party the benefit of all 

reasonable inferences deducible from the evidence. Wintroub v. 

Nationstar Mortgage, supra.

(a) Actual Knowledge Under 

§ 76-2417(3)(a)

As part of its April 30, 2020, order, the district court found 

that for Forehead to be liable as the seller’s agent under 

§ 76-2417(3)(a) in this case, she “must have actual knowledge of a material defect.” Section 76-2417(3)(a), in pertinent 

part, provides:

A licensee acting as a seller’s . . . agent owes no duty 

or obligation to a buyer . . . or a prospective buyer . . . 

except that a licensee shall disclose in writing to the buyer 

. . . or prospective buyer . . . all adverse material facts 

actually known by the licensee. The adverse material 
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facts may include, but are not limited to, adverse material facts pertaining to: (i) Any environmental hazards 

affecting the property which are required by law to be 

disclosed; (ii) the physical condition of the property; (iii) 

any material defects in the property; (iv) any material 

defects in the title to the property; or (v) any material 

limitation on the client’s ability to perform under the 

terms of the contract.

(Emphasis supplied.) The portion of Neb. Rev. Stat. § 76-2403 

(Reissue 2018) applicable here defines an “[a]dverse material 

fact” as “a fact which . . . significantly affects the desirability 

or value of the property to a party and is not reasonably ascertainable or known to a party.”

[4-6] We determine a statute’s meaning based on its text, 

context, and structure. Ash Grove Cement Co. v. Nebraska 

Dept. of Rev., 306 Neb. 947, 947 N.W.2d 731 (2020). Statutory 

language is to be given its plain and ordinary meaning, and 

an appellate court will not resort to interpretation to ascertain the meaning of statutory words that are plain, direct, 

and unambiguous. Weatherly v. Cochran, 301 Neb. 426, 918 

N.W.2d 868 (2018). The court, in discerning the meaning 

of a statute, should determine and give effect to the purpose 

and intent of the Legislature as ascertained from the entire 

language of the statute considered in its plain, ordinary, and 

popular sense. Id.

[7-8] Our reading of the plain language of §§ 76-2403 and 

76-2417(3)(a) informs us that a licensee acting as a seller’s 

agent is required to provide to a buyer or prospective buyer 

written disclosure of adverse material facts actually known by 

the licensee. An adverse material fact is a fact which significantly affects the desirability or value of the property to a party 

and is not reasonably ascertainable or known to that party, and 

which may include, but is not limited to, a fact pertaining to 

any environmental hazards affecting the property required by 

law to be disclosed, the physical condition of the property, 

any material defects in the property, any material defects in 
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the title, or any material limitation on the client’s ability to 

perform under the terms of the contract. As applicable here, 

Forehead was required to provide in writing to the Hinsons any 

facts actually known by Forehead which would significantly 

affect the desirability or value of the property and which were 

not reasonably ascertainable or known by the Hinsons, pertaining to the physical condition of the property or any material 

defects in the property.

(b) Propriety of Summary Judgment

The district court determined that “Forehead did not have 

actual knowledge of a material defect.” The court was persuaded by Forehead’s testimony that she never opened the 

email from Boldt containing the estimate and other documents together with Forehead’s reported observations of the 

Beans’ property. The court also noted that “[a] couple buyers 

expressed concern about settling and potential problems with 

the foundation,” but these concerns “did not impute upon 

Forehead knowledge that the home needed extensive repair.” 

(Emphasis in original.)

[9] However, we do not construe §§ 76-2403 and 

76-2417(3)(a) as narrowly as the district court. These statutes 

do not limit Forehead’s duty to disclose facts only when she 

has actual knowledge of the existence of a material defect or 

only when she has knowledge that a home needs extensive 

repair. Rather, the statutes contemplate whether Forehead knew 

of any facts which significantly affected the desirability or 

value of the property and which were not reasonably ascertainable or known by the Hinsons, pertaining to the physical condition of the property or any material defects in the property. 

Based on the record before us, a fact finder could conclude that 

Forehead was aware of such facts.

As we have previously described, Forehead received communications from no fewer than four agents indicating the 

existence of settling, tilting, or slanting with respect to the 

foundation. These communications also referenced prospective 
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buyers who were either dissuaded from giving an offer or gave 

a lower offer than the listing price set by the Beans because of 

such concerns. Forehead’s communications with Boldt are particularly illustrative, as Boldt first wrote that Starkel’s “main 

concern [was] the foundation” and later sent Forehead an offer 

of $300,000 for the Beans’ property that was substantially 

lower than the property’s listing price of $469,500. Forehead 

herself noted in an email to Michael that Boldt was the second 

agent to request permission for a prospective buyer to hire an 

inspector to examine “the foundation and water issues.” In an 

email accompanying Starkel’s $300,000 offer, Boldt noted that 

Starkel was “willing to take on the work . . . need[ed] to be 

done,” which consisted of “[m]ainly the foundation work” in 

addition to “replacing the rotted windows[] and fixing damaged drywall.” This evidence could support a conclusion that 

Forehead was aware of, but did not disclose to the Hinsons, 

facts which significantly affected the desirability or value of 

the property.

Also, Forehead’s deposition testimony that she never opened 

Boldt’s email forwarding the RamJack report or that she 

“glanced” at the contents of the Foundation-2-Rooftop report 

and saw “[n]othing major” is not dispositive on the question of 

Forehead’s knowledge of facts pertaining to the physical condition of the property or any material defects affecting the desirability or value of the property. Forehead’s receipt of responses 

and other communications from the various other prospective 

buyers’ agents cannot be discounted. The record demonstrates 

that Forehead received communications indicating that several prospective buyers, specifically because of the property’s 

foundation, had elected to either not enter offers for the Beans’ 

property or offer a purchase price substantially lower than the 

property’s listing price.

[10] When viewing the evidence in the light most favorable 

to the Hinsons, the believability of Forehead’s claimed lack 

of knowledge of any facts pertaining to the physical condition 

of the property or any material defects therein which would 
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significantly affect the desirability or value of the property 

to the Hinsons is a matter to be considered by the fact finder. 

When the testimony of the parties is in conflict and credibility 

is a factor, summary judgment is not proper. Blome v. Hottell, 

200 Neb. 528, 264 N.W.2d 424 (1978). And contrary to the 

dissent’s characterization, we do not view the sole issue to 

be whether Forehead was required to disclose the contents 

of the RamJack report; rather, the issue is whether Forehead 

had actual knowledge of adverse material facts based upon 

all the information available to her, which knowledge she was 

obligated to disclose. We find that this is a question of fact. 

Because we conclude the plain language of §§ 76-2403 and 

76-2417(3)(a) as applied to the evidence in the record before us 

raises a genuine issue as to material facts, summary judgment 

was not appropriate.

However, there is another factor that must be considered. 

As previously noted, an adverse material fact is a fact that is 

“not reasonably ascertainable or known to a party.” § 76-2403. 

Thus, we must determine whether there is a material issue of 

fact as to whether the alleged adverse material facts described 

above regarding the physical condition of the property or material defects in the property were reasonably ascertainable or 

known by the Hinsons. In doing so, we consider whether the 

Hinsons’ retention of others to conduct a home inspection on 

their behalf made those alleged adverse material facts reasonably ascertainable to them. We conclude that we cannot say, as 

a matter of law, that by obtaining their own home inspection, 

the Hinsons made those alleged adverse material facts reasonably ascertainable to them. We have found no authority stating 

that prospective buyers who obtain their own home inspection 

have now made any alleged adverse material facts reasonably 

ascertainable to them, as a matter of law. We conclude that such 

circumstances must be considered by the fact finder on a caseby-case basis.

Given our conclusion that summary judgment was not 

appropriate, it is unnecessary for us to consider the Hinsons’ 
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suggestion that § 76-2417(3)(a) should be construed based 

upon the Nebraska Supreme Court’s interpretation of Neb. 

Rev. Stat. § 81-885.24(14) (Reissue 1981) in Hancock v. State 

ex rel. Real Estate Comm., 213 Neb. 807, 331 N.W.2d 526 

(1983) (§ 81-885.24(14), penal in nature, deals with revocation or suspension of real estate license when licensee is found 

guilty of negotiating sale or listing real estate directly with 

owner if he or she knows that owner already has listing contract with another broker; court determined person knows of 

some fact or condition when person has actual knowledge of 

fact or condition or has actual knowledge of facts that would 

cause reasonably prudent person to believe such fact or condition exists).

We also note that Forehead and Ambassador argue that 

while the Hinsons claim there was actual knowledge under 

§ 76-2417(3)(a), they “remain silent on the duties under 

. . . §76-2,120.” Brief for appellees at 18. Section 76-2,120(9) 

states that a “person representing a principal in the transaction 

shall not be liable . . . for any error, inaccuracy, or omission 

of any information in a disclosure statement unless that person 

has knowledge of the error, inaccuracy, or omission on the 

part of the seller.” Forehead and Ambassador argue that “[i]t 

cannot be said that [they] obtained the requisite actual knowledge necessary under only one of these statutes.” Brief for 

appellees at 18. We disagree. Our reading of §§ 76-2,120 and 

76-2417(3)(a) does not persuade us that knowledge of errors, 

inaccuracies, or omissions in the seller’s disclosure statement 

that would trigger liability under § 76-2,120 is necessarily 

equivalent to knowledge of adverse material facts that would 

trigger liability under § 76-2417(3)(a) such that a seller’s agent 

could not be liable under one statute without also being liable 

under the other.

[11] Forehead and Ambassador also argue that regardless 

of the issue of actual knowledge, the Hinsons’ argument is 

nevertheless moot on the basis that they cannot prove causation or damages against them. However, the district court did 
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not reach the issue of causation, let alone damages, in its order 

granting summary judgment. We therefore decline to consider 

that argument. An appellate court will not consider an issue on 

appeal that was not passed upon by the trial court. Thomas v. 

Peterson, 307 Neb. 89, 948 N.W.2d 698 (2020).

Viewing the entire record before us in a light most favorable 

to the Hinsons and giving them the benefit of all reasonable 

inferences, we agree with the Hinsons that a genuine issue of 

material fact exists in this case. Specifically, that issue of material fact is whether Forehead had actual knowledge of adverse 

material facts, meaning her actual knowledge of facts, which 

would significantly affect the desirability or value of the property and which were not reasonably ascertainable or known by 

the Hinsons, pertaining to the physical condition of the property or any material defects in the property. Therefore, the district court’s grant of summary judgment in favor of Forehead 

and Ambassador was not appropriate.

VI. CONCLUSION

For the reasons set forth above, we reverse the district 

court’s order granting summary judgment in favor of Forehead 

and Ambassador and remand the cause for further proceedings 

on the Hinsons’ claim that Forehead and Ambassador breached 

a duty to the Hinsons under § 76-2417(3)(a).

Reversed and remanded for 

further proceedings.

Welch, Judge, dissenting.

I respectfully dissent from the majority opinion because 

I believe the district court properly granted the appellees’ 

motion for summary judgment on this record. The sole issue 

in this case is whether a residential property seller’s agent was 

required to disclose to the appellants the contents of a report 

the seller’s agent received from a previous prospective buyer’s 

contractor. Here, the previous prospective buyer’s contractor, RamJack, issued a report which stated that the source of 
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certain cracks in the residential structure’s foundation and drywall was “most likely from the sever [sic] settling.” The report 

further stated: “The front pillar has moved away from the foundation approximately 1’ at this time. I have purposed [sic] to 

install 2 piles to stabilize and possible recovery.”

As to this same cracking, the appellants retained their own 

contractor to observe and ascertain the cause and origin of 

the cracking. The appellants’ contractor, a licensed engineer, 

opined: “Nothing discussed . . . would indicate that there are 

significant structural issues or damage to the residence.” After 

receiving that report, the appellants purchased the residential property only to later discover the contents of the prior 

RamJack report and sue the appellees for failing to disclose it. 

The appellants argue that the appellees were obligated to disclose the RamJack report under Neb. Rev. Stat. § 76-2417(3)(a) 

(Reissue 2018).

As the majority opinion notes, § 76-2417(3)(a) explicitly 

provides that a seller’s agent owes no duty or obligation to 

a buyer or prospective buyer except to disclose in writing 

“all adverse material facts actually known by the licensee.” 

As relevant to this case, those may include adverse material 

facts pertaining to “the physical condition of the property,” 

§ 76-2417(3)(a)(ii), and “any material defects in the property,” 

§ 76-2417(3)(1)(iii). “Adverse material fact” is defined by 

statute as

a fact which (1) significantly affects the desirability or 

value of the property to a party and is not reasonably 

ascertainable or known to a party or (2) establishes a 

reasonable belief that another party will not be able to, or 

does not intend to, complete that party’s obligations under 

a contract creating an interest in real property.

Neb. Rev. Stat. § 76-2403 (Reissue 2018).

The majority objects to the dissent’s narrow characterization of the issue in this case as the appellees’ failure to disclose the contents of the RamJack report. Instead, the majority frames the issue more broadly, stating, “[T]he issue is 
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whether Forehead had actual knowledge of adverse material 

facts based upon all the information available to her . . . .” But 

in my view, the issue was framed by the appellants themselves 

in their complaint.

In the “Facts” section of their complaint, the appellants 

assert the appellees’ violation related to failing to disclose “significant structural issues with the [p]roperty” which the appellants alleged the appellees learned from the RamJack report. 

Although the appellants never explicitly state in their complaint the specific nature of the “significant structural issues,” 

the appellants direct the court to the RamJack report, which 

provides that the cracking is “most likely from the sever [sic] 

settling” and states, “I have purposed [sic] to install 2 piles 

to stabilize and possible recovery.” The appellants then allege 

that “[d]espite having received the [RamJack] report from 

. . . Starkel, neither the Beans nor . . . Forehead disclosed the 

information contained in the [RamJack] Report to prospective 

buyers of the Property, including the Hinsons.” Then, again, in 

their fifth theory of recovery, the appellants claim the appellees 

violated § 76-2417(3), alleging, “Forehead and [Ambassador] 

knew or should have known that there were structural issues 

with respect to the Property based upon the [RamJack] report 

that . . . Starkel provided to . . . Forehead.” As such, the specific nature of that portion of the complaint relevant to this 

appeal is that the “significant structural issues” the appellants 

claim existed here and which the appellees failed to disclose 

in violation of § 76-2417(3) were the information contained 

within the RamJack report.

As to that report, the explicit terms used by RamJack provided that the “sever [sic]” settling was “most likely” the cause 

of the cracking and unquestionably demonstrate the expression of an opinion on the condition of the property. Similarly, 

the appellants’ own contractor, a licensed engineer, issued his 

own opinion that those same cracks did not pose a significant 

structural issue to the home. The question becomes whether the 

seller’s agent was legally obligated to disclose the RamJack 
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opinion to the appellants. As a matter of law, I believe the 

seller’s agent was not. The only duty owed by a seller’s agent 

to the buyer here is to disclose adverse material facts, not 

opinions. The only fact I see in this record is the fact that there 

was cracking in the foundation and drywall, which cracking 

was reasonably ascertainable and known by everyone involved. 

Whether that cracking was caused by settling of the home, 

whether the settling was “severe,” and whether any severe settling amounted to a material defect in the property were matters of opinion here, not fact. The majority holds that whether 

all information available to the appellees triggered a statutory 

obligation of disclosure constitutes a factual question which 

must be resolved by the trier of fact and should not properly be 

resolved through summary judgment. I believe, on this record, 

that the only fact requiring disclosure was that cracking was 

present and that this patent condition, known to all, was open 

to interpretation as to its cause or origin. In my view, subjecting a seller’s agent to potential liability here on the basis that 

the agent failed to disclose the contents of RamJack’s opinion 

on this record would open the door to requiring a seller’s agent, 

out of an abundance of caution, to discose all opinions obtained 

or received in connection with the sales process. At least on this 

record, when the report contains language which provides the 

condition “most likely” relates to what the contractor opines to 

be a material structural problem, and where objective evidence 

of a potential material problem is open, obvious, and known by 

all, as a matter of law, I do not see this as being consistent with 

the statutory construct requiring disclosure.