Heard v. Silvus

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
HEARD v. SILVUS
Cite as 33 Neb. App. 20
Daric Heard and Aryelle Beam, appellants, v.
Steve Silvus and SAS Properties, LLC, appellees.
___ N.W.3d ___
Filed June 25, 2024. 	No. A-23-697.
1. Motions to Dismiss: Appeal and Error. A district court’s grant of a
motion to dismiss is reviewed de novo.
2. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing
an order dismissing a complaint, the appellate court accepts as true
all facts which are well pled and the proper and reasonable inferences
of law and fact which may be drawn therefrom, but not the plaintiff’s
conclusion.
3. Real 	Estate: 	Sales: 	Contracts. 	Pursuant 	to 	Neb. 	Rev. 	Stat.
§ 76-2,120(3)(i) (Reissue 2018), information provided in a written
disclosure statement of the real property’s condition is not intended to
be part of any contract between the seller and purchaser.
4. Arbitration and Award. Under Neb. Rev. Stat. § 25-2603(a) (Reissue
2016), on application of a party showing a valid arbitration agreement
and the opposing party’s refusal to arbitrate, the court shall order the
parties to proceed with arbitration, but if the opposing party denies the
existence of the agreement to arbitrate, the court shall proceed summar-
ily to the determination of the issue so raised and shall order for the
moving party; otherwise, the application shall be denied.
Appeal from the District Court for Douglas County: LeAnne
M. Srb, Judge. Reversed and remanded for further proceedings.
Natalie M. Hein and Damien J. Wright, of Welch Law Firm,
P.C., for appellants.
No appearance by appellees.
Pirtle, Chief Judge, and Riedmann and Bishop, Judges.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 07:29 AM CDT

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
HEARD v. SILVUS
Cite as 33 Neb. App. 20
Bishop, Judge.
INTRODUCTION
Daric Heard and Aryelle Beam (collectively the Buyers)
purchased a home from Steve Silvus and SAS Properties, LLC
(collectively Silvus). Silvus had completed a “Seller Property
Condition Disclosure Statement” (Disclosure Statement) in
April 2022. The following month, the parties executed a
“Uniform Purchase Agreement” (Purchase Agreement). The
Buyers subsequently filed a complaint against Silvus alleging
the existence of several issues related to the property that they
claimed Silvus failed to disclose in the Disclosure Statement.
The Douglas County District Court granted Silvus’ motion
to dismiss, finding that it did not have jurisdiction over the
pending matter because the parties were required to comply
with the arbitration provisions contained in the Purchase
Agreement. The Buyers appeal. Because we find that the
Buyers’ claims relate to the Disclosure Statement and not the
Purchase Agreement, we reverse the order of the district court
and remand the cause for further proceedings.
BACKGROUND
On June 8, 2023, the Buyers filed a complaint against Silvus
wherein they alleged the following: In April 2022, Silvus
owned and listed for sale a property in Omaha, Nebraska. In
connection with the property listing and as required by Neb.
Rev. Stat. § 76-2,120 (Reissue 2018), Silvus executed the
Disclosure Statement on April 10. A copy of the Disclosure
Statement was attached to the complaint; it represented that
the central air conditioning and the heating system were
working, and under the section of the disclosure statement
that asked whether the seller had “ever performed or had
performed” servicing on the air conditioner or furnace, Silvus
checked the box labeled “Do Not Know.” The Disclosure
Statement also represented that the plumbing (water supply
and water drainage) was working; that the roof was new, did
not leak, had never leaked, and had no damage; that there had

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
HEARD v. SILVUS
Cite as 33 Neb. App. 20
been no water intrusion into the basement or crawl space; and
that there had been no damage to the property due to rodents.
The complaint further alleged that on May 27, 2022, after
“reviewing the Disclosure and in reasonable reliance thereon,”
the Buyers entered into the Purchase Agreement, a copy of
which was attached to the complaint. The Buyers alleged
that “[b]ecause the real estate market was competitive at the
time of the Purchase Agreement,” the Buyers offered more
than the asking price and elected not to make their purchase
contingent upon a home inspection. Silvus accepted the offer,
and the transaction closed on June 17, at which time Silvus
deeded the property to the Buyers and they took possession
of the same.
According to the complaint, upon moving into the property,
the Buyers noticed that the property was not cooling properly
and there were rodent droppings in the basement. Shortly
thereafter, the Buyers discovered that Silvus had known
and tried to cover up the fact that the air conditioning and
heating units were not working and that there were several
leaking water pipes, mold issues, rodent problems, and tree
roots growing in the sewer pipe. To restore the property, the
Buyers paid $28,251.70 and estimated that they would have
to expend an additional $125,561.31, for total damages of
$153,813.01. To recover such damages, along with attorney
fees and costs, the Buyers alleged three theories of recovery:
(1) breach of § 76-2,120, (2) fraudulent misrepresentation,
and (3) negligent misrepresentation.
On July 3, 2023, Silvus filed “Amended Motions Pursuant
to Rules 9 and 12.” In relevant part, Silvus “move[d] for dis-
missal pursuant to Rule 12(b).” Silvus alleged that the Purchase
Agreement required mediation and arbitration and that the
Buyers’ action violated Nebraska’s Uniform Arbitration Act,
Neb. Rev. Stat. §§ 25-2601 to 25-2622 (Reissue 2016) (UAA).
Following a hearing, the district court entered its order on
August 22, 2023. The court stated that it had reviewed the

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Nebraska Court of Appeals Advance Sheets
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HEARD v. SILVUS
Cite as 33 Neb. App. 20
Purchase Agreement and Nebraska’s arbitration statutes. It
then concluded:
A review of the Purchase Agreement reveals that the par-
ties agreed that any dispute not resolved through settle-
ment or mediation would be decided exclusively through
arbitration. Applying the language of the statutes to the
Purchase Agreement, the parties are required to follow
through with those arbitration provisions and are ordered
to comply with the provisions under the agreement. As
such, the Court does not have jurisdiction over the pend-
ing matter and the motion to dismiss filed by [Silvus]
is granted.
The Buyers appeal from that order.
ASSIGNMENTS OF ERROR
The Buyers assign, reordered, that the district court erred in
(1) implicitly determining that their claims with respect to the
Disclosure Statement were within the scope of the Purchase
Agreement’s arbitration provision; (2) implicitly finding, at
the pleading stage, that the Purchase Agreement and the arbi-
tration provision contained therein was enforceable despite
the allegations of fraud and misrepresentation; (3) failing to
proceed summarily to the determination of the existence of a
valid and enforceable agreement to arbitrate; (4) ordering the
parties to arbitrate; (5) finding that it lacked jurisdiction over
the claims; and (6) granting Silvus’ motion to dismiss.
STANDARD OF REVIEW
[1,2] A district court’s grant of a motion to dismiss is
reviewed de novo. Williams v. Frakes, 315 Neb. 379, 996
N.W.2d 498 (2023). When reviewing an order dismissing a
complaint, the appellate court accepts as true all facts which
are well pled and the proper and reasonable inferences of law
and fact which may be drawn therefrom, but not the plaintiff’s
conclusion. Id.

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
HEARD v. SILVUS
Cite as 33 Neb. App. 20
ANALYSIS
Disclosure Statement Statute
[3] Section 76-2,120 requires sellers of residential real prop-
erties to complete a written disclosure statement of the real
property’s condition. Section 76-2,120 states in relevant part:
(3) The disclosure statement shall include language at
the beginning which states:
. . . .
(d) That the statement is a disclosure of the real prop-
erty’s condition as known by the seller on the date of
disclosure;
(e) That the statement is not a warranty of any kind
by the seller or any agent representing a principal in the
transaction;
(f) That the statement should not be accepted as a sub-
stitute for any inspection or warranty that the purchaser
may wish to obtain;
(g) That even though the information provided in the
statement is not a warranty, the purchaser may rely on
the information in deciding whether and on what terms to
purchase the real property;
. . . .
(i) That the information provided in the statement is
the representation of the seller and not the representation
of any agent and that the information is not intended to
be part of any contract between the seller and purchaser.
. . . .
(5) The disclosure statement shall be completed to the
best of the seller’s belief and knowledge as of the date
the disclosure statement is completed and signed by the
seller. . . . On or before the effective date of any contract
which binds the purchaser to purchase the real property,
the seller shall update the information on the disclosure
statement whenever the seller has knowledge that infor-
mation on the disclosure statement is no longer accurate.
. . . .

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Nebraska Court of Appeals Advance Sheets
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HEARD v. SILVUS
Cite as 33 Neb. App. 20
(7) The disclosure statement and any update to the
statement shall be delivered by the seller or the agent of
the seller to the purchaser or the agent of the purchaser
on or before the effective date of any contract which
binds the purchaser to purchase the real property, and
the purchaser shall acknowledge in writing receipt of the
disclosure statement or update.
. . . .
(11) A transfer of an interest in real property subject to
this section may not be invalidated solely because of the
failure of any person to comply with this section.
(12) If a conveyance of real property is not made in
compliance with this section, the purchaser shall have a
cause of action against the seller and may recover the
actual damages, court costs, and reasonable attorney’s
fees. The cause of action created by this section shall
be in addition to any other cause of action that the pur-
chaser may have. Any action to recover damages under
the cause of action shall be commenced within one year
after the purchaser takes possession or the conveyance of
the real property, whichever occurs first.
(Emphasis supplied.) The seller shall not be liable for any
error, inaccuracy, or omission of any information in a disclo-
sure statement if such was not within the personal knowledge
of the seller. See § 76-2,120(8).
Facts Relevant to Disclosure Statement
and Arbitration Provision
When reviewing an order dismissing a complaint, we accept
as true all facts which are well pled; these have been set forth
above. We also observe that in accordance with § 76-2,120,
the Disclosure Statement represented that “[e]ven though
the information provided in this statement is NOT a war-
ranty, the purchaser may rely on the information contained
herein in deciding whether and on what terms to purchase
the real property,” and that “[t]he information provided in

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HEARD v. SILVUS
Cite as 33 Neb. App. 20
this statement . . . is NOT intended to be part of any contract
between the seller and purchaser.” (Emphasis in original.)
The Buyers signed and initialed the Disclosure Statement,
acknowledging their receipt of the same.
On May 27, 2022, the parties entered into the Purchase
Agreement; it contained the following provision:
31. Arbitration and Mediation:
31.1 Disputes: The term “Dispute” shall include, with-
out limitation, any controversy, complaint, dispute, claim
or disagreement relating to or arising out of the con-
struction, interpretation, enforcement, or breach of the
terms of this Purchase Agreement between Purchaser
and Seller.
. . . .
31.3 Arbitration: Any Dispute that is not resolved
by informal settlement or mediation shall be resolved
exclusively by binding arbitration. Such arbitration shall
be administered by the American Arbitration Association
and 	shall 	be 	conducted 	according 	to 	the American
Arbitration Association’s Commercial Rules — Real
Estate Industry Arbitration Rules (Including a Mediation
Alternative).
(Emphasis omitted.) Above the buyers’ signature line in the
Purchase Agreement appeared a sentence that read: “This con-
tract contains an arbitration provision unless waived in Section
31 which may be enforced by the parties.” (Emphasis omitted.)
A similar sentence appeared above the seller’s signature line.
The parties did not waive the arbitration provision.
The district court granted Silvus’ motion to dismiss, find-
ing that it did not have jurisdiction over the pending matter
because the parties were required to comply with the arbitra-
tion provisions in the Purchase Agreement.
General Arbitration Principles
A provision in a written contract to submit to arbitra-
tion any controversy thereafter arising between the parties is

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
HEARD v. SILVUS
Cite as 33 Neb. App. 20
valid, enforceable, and irrevocable, except upon such grounds
as exist at law or in equity for the revocation of any con-
tract, if the provision is entered into voluntarily and willingly.
§ 25-2602.01(b). The making of an agreement described in
§ 25-2602.01 providing for arbitration in this state confers
jurisdiction on the district court to enforce the agreement under
the UAA. See § 25-2618.
[4] Section 25-2603(a) of the UAA authorizes a party to a
judicial proceeding to apply for an order compelling arbitra-
tion of the dispute. Cullinane v. Beverly Enters. - Neb., 300
Neb. 210, 912 N.W.2d 774 (2018). Under § 25-2603(a) of the
UAA, on application of a party showing a valid arbitration
agreement and the opposing party’s refusal to arbitrate, the
court shall order the parties to proceed with arbitration, but
if the opposing party denies the existence of the agreement
to arbitrate, the court shall proceed summarily to the deter-
mination of the issue so raised and shall order for the moving
party; otherwise, the application shall be denied. Cullinane v.
Beverly Enters. - Neb., supra. Pursuant to § 25-2603(d):
Any action or proceeding involving an issue subject to
arbitration shall be stayed if an order for arbitration or
an application therefor has been made under this sec-
tion or, if the issue is severable, the stay may be with
respect thereto only. When the application is made in
such action or proceeding, the order for arbitration shall
include such stay.
Disclosure Statement Not Part
of Purchase Agreement
The Buyers argue that the Disclosure Statement is separate
from the Purchase Agreement, and thus not subject to the arbi-
tration provision in the Purchase Agreement. We agree.
Section 31 of the Purchase Agreement requires arbitration
for any “Dispute[]” not resolved by informal settlement or
mediation. And the term “Dispute” was defined in section 31
as including, without limitation, “any controversy, complaint,

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Nebraska Court of Appeals Advance Sheets
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HEARD v. SILVUS
Cite as 33 Neb. App. 20
dispute, claim or disagreement relating to or arising out of
the construction, interpretation, enforcement, or breach of the
terms of this Purchase Agreement between Purchaser and
Seller.” (Emphasis supplied.)
The Buyers do not allege a dispute relating to the Purchase
Agreement, nor do they allege a breach of the Purchase
Agreement. “The basis of their claim is representations made
in the seller disclosure statement [over 1½ months] prior
to entering into the purchase agreement.” Brief for appel-
lant at 13 (emphasis in original). Additionally, as required
by § 76-2,120(3)(i), the Disclosure Statement in this case
states that the information provided “is NOT intended to
be part of any contract between the seller and purchaser.”
(Emphasis in original.) And § 76-2,120 creates its own cause
of action in addition to any other cause of action that the
purchaser may have. § 76-2,120(12) (when “conveyance of
real property is not made in compliance with this section,
the purchaser shall have a cause of action against the seller,”
and “[t]he cause of action created by this section shall be in
addition to any other cause of action that the purchaser may
have”). Because the Disclosure Statement was separate from
the Purchase Agreement, the Buyers’ claim that Silvus vio-
lated § 76-2,120 was not subject to the arbitration provision
in the Purchase Agreement. Likewise, their additional theories
of recovery—fraudulent and negligent representation—relate
to the Disclosure Statement and not the Purchase Agreement
and thus are not subject to the arbitration provision in the
Purchase Agreement.
Accordingly, we find that the district court erred in order-
ing the parties to arbitrate and in granting Silvus’ motion to
dismiss. And because the Purchase Agreement’s arbitration
provision did not apply to the Buyers’ complaint, the court
erred in finding that it lacked jurisdiction over the action.
Given our findings above, we need not address the Buyers’
remaining assignments of error regarding the validity and
enforceability of the arbitration provision. See Swicord v.

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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
HEARD v. SILVUS
Cite as 33 Neb. App. 20
Police Stds. Adv. Council, 314 Neb. 816, 993 N.W.2d 327
(2023) (appellate court not obligated to engage in analysis not
necessary to adjudicate case and controversy before it).
CONCLUSION
For the reasons stated above, we reverse the district court’s
order and remand the cause for further proceedings.
Reversed and remanded for
further proceedings.