PUBLISHED OPINION
Case Nos.: 94-0170
94-2083
Complete Title
of Case:
In the Matter of the Foreclosure
Of Tax Liens Pursuant to
Section 75.521, Wisconsin Statutes
By Waukesha County, List of Tax
Liens For the Years 1988, 1989 and
Prior Years Number Twenty Seven:
WAUKESHA COUNTY,
Petitioner‑Respondent,
v.
ALBERT A. TADYCH,
Respondent‑Appellant.
Oral Argument: September 14, 1995
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: October 11, 1995
Opinion Filed: October
11, 1995
Source of APPEAL Appeal from orders
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Waukesha
(If
"Special", JUDGE: PATRICT L. SNYDER
so indicate)
JUDGES: Anderson, P.J., Brown and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the respondent-appellant, the cause was
submitted on the briefs and oral argument of Lawrence E. Slavik of
Wauwatosa.
Respondent
ATTORNEYSOn behalf of the petitioner-respondent, the cause was
submitted on the brief and oral argument of Danni L. Caldwell, principal
assistant corporation counsel.
Amicus
Curiae An amicue
curiae brief was submitted by Judith
Sperling Newton and Carol
M. Gapen of Stafford,
Rosenbaum, Rieser & Hansen of
Madison. Oral
argument by Judith Sperling Newton.
COURT OF APPEALS DECISION DATED AND RELEASED OCTOBER 11, 1995 |
NOTICE |
A party may file
with the Supreme Court a petition to review an adverse decision by the Court
of Appeals. See § 808.10
and Rule 809.62, Stats. |
This opinion is
subject to further editing. If
published, the official version will appear in the bound volume of the
Official Reports. |
Nos. 94-0170
94-2083
STATE OF WISCONSIN IN
COURT OF APPEALS
In the Matter of the Foreclosure
Of Tax Liens Pursuant to
Section 75.521, Wisconsin Statutes
By Waukesha County, List of Tax
Liens For the Years 1988, 1989 and
Prior Years Number Twenty Seven:
WAUKESHA COUNTY,
Petitioner‑Respondent,
v.
ALBERT A. TADYCH,
Respondent‑Appellant.
APPEALS
from orders of the circuit court for Waukesha County: PATRICK L. SNYDER,
Judge. Reversed and cause remanded
with directions.
Before
Anderson, P.J., Brown and Snyder, JJ.
ANDERSON,
P.J. Albert A. Tadych, a minor, appeals from
orders of the trial court wherein the court denied Tadych's request to vacate
and set aside a default judgment of tax foreclosure. We conclude that Tadych's property interests were not adequately
protected by a guardian ad litem as required by statute. Accordingly, we reverse and remand the cause
of action with directions.
On
April 9, 1993, Waukesha County filed a list of tax liens being foreclosed by
proceedings in rem and a petition of foreclosure. Tadych's two properties were included in the list of tax liens. The properties were listed as belonging to
the Albert A. Tadych Trust Fund.
Testimony at a motion hearing, however, revealed that the trust fund did
not exist and the properties were owned by the minor.
The
County fixed June 15, 1993, as the last day for redemption of the delinquent
tax liens. The trial court issued an
order appointing a guardian ad litem for all persons known, or unknown, with an
interest in the lands described in the list of tax liens on June 21, 1993,
pursuant to § 75.521(12), Stats. The court filed a default judgment against
the properties on August 10, 1993.
Tadych
filed a motion to vacate and set aside the default judgment and to restrain the
sale of real property. The court issued
an order denying the motion for vacation of the judgment on January 13,
1994. In its order, the trial court
found that Albert A.'s father, Albert R. Tadych, contacted the Waukesha County
Treasurer's Office and was misinformed as to the rights of former owners to purchase
the property transferred to the County as a result of in rem proceedings. The court concluded, however, that Albert R.
“is presumed to have knowledge of the Waukesha County Code ¼ therefore, the
misinformation supplied by the County Treasurer's office cannot be relied upon
by him to support a laches or estoppel argument.”
In
a hearing held on January 18, 1994, the trial court sua sponte raised an issue
concerning Waukesha County's procedures under § 75.35(3), Stats.
The trial court subsequently issued an order stating: “[t]he ordinance adopted by the Waukesha
County Board of Supervisors giving qualified preference for repurchase to former
owners of land acquired by the County as a result of the tax foreclosure process
is in conformity with state statutes.”
The court ordered that Tadych's motion for vacation of the judgment of
tax foreclosure was denied. Tadych
appeals the trial court's orders.
Tadych
argues that the trial court erred when it refused to vacate and set aside a
default judgment where the guardian ad litem appointed in the case “did
absolutely nothing in that position, and was only a nominal representative who
was appointed because section 75.521(12)(b), WIS. STATS., required the same.” Initially, the County argues that the issue
of the guardian ad litem's duties was not addressed by the trial court and
should not be an issue on appeal.[1] In the alternative, however, the County
argues, among other things, that “The mere existence of a trust does not
automatically indicate that a minor is a beneficiary.” Additionally, it argues that “If the
guardian ad litem can find no [affirmative defense of jurisdictional defect or
invalidity of proceedings], his or her role is complete since it is not a
defense to an in rem proceeding that the owner of the property is a
minor, incompetent, absentee or nonresident.”
We
must determine the extent of a guardian ad litem's duties under § 75.521(12), Stats.
This requires an interpretation of the statute. Statutory interpretation is a question of
law that we review without deference to the trial court's decision. K.N.K. v. Buhler, 139 Wis.2d
190, 199, 407 N.W.2d 281, 286 (Ct. App. 1987).
Section
75.521(12)(b), Stats., provides:
This section
shall apply to and be valid and effective with respect to all defendants even
though one or more be infants, incompetents, absentees or nonresidents of the
state of Wisconsin, provided that a guardian ad litem shall be appointed to
serve for all persons known or unknown who have or may have an interest in the
lands described in any list and who are or may be minors or incompetents at the
date of filing such list. Such guardian
ad litem may be appointed by the court without notice, and the fee for the
services of the guardian ad litem as fixed by the court shall be paid by the
county.
When interpreting a statute, we first look to the plain
language of the statute itself. Marshall-Wisconsin
Co. v. Juneau Square Corp., 139 Wis.2d 112, 133, 406 N.W.2d 764, 772
(1987). If ambiguity exists in the
statute, we must look beyond the language to the statutory context, subject
matter, scope, history and object to be accomplished. Nick v. Toyota Motor Sales, 160 Wis.2d 373, 380,
466 N.W.2d 215, 218 (Ct. App. 1991).
Here,
we conclude that § 75.521(12)(b), Stats.,
is ambiguous for purposes of determining the role of a guardian ad litem. Although the statute states that a guardian
ad litem “shall be appointed to serve for all persons known or unknown,” who
have an interest in land described in any list and who are minors or
incompetents at the date of filing such list, the statute in no way defines a
guardian's role in the proceedings or the guardian's specific duties.
In
order to define the role of a guardian ad litem under § 75.521(12)(b), Stats., we look to general case law for
guidance. We note that “the guardian ad
litem's overarching duty is to assist the court in its governmental
function of seeing to it that justice is done to those who are defenseless and
who are the objects of the special concern of government.” Romasko v. City of Milwaukee,
108 Wis.2d 32, 38, 321 N.W.2d 123, 126 (1982).
A guardian ad litem must do the job competently and to the fullest
extent reasonable in a particular case.
See Disch v. Betz,
123 Wis.2d 340, 355, 366 N.W.2d 879, 886 (1985).
The trial
court stated:
The other ground that Mr. Tadych raised was the guardian
ad litem appointed by this Court. I
made no mention of his responsibilities prior to this time, but I now would
find for purposes of this record, however, that he has met the obligation of
any responsibility to the wards in question as it would pertain to this case in
that his responsibilities are, one, to determine that a notice was delivered,
mailed; secondly, that taxes were due and owing; and, thirdly, that taxes were
unpaid, all of which apply to the Tadych property. Therefore, I find no fault with the guardian ad litem in this
regard.
We disagree with the trial court and conclude that a
guardian ad litem's duties are more expansive.
Initially,
we conclude that the court must appoint a guardian ad litem prior to the final
day for redemption in order to give the guardian a reasonable amount of time to
investigate whether minors or incompetents are owners of the properties in
question. While we will not dictate an
exact time frame for appointment, it must be sufficient to allow the guardian
to carry out his or her investigative duties.
Once
appointed, the guardian ad litem must determine whether he or she does in fact
represent the interests of any minors or incompetents. This will require an investigation of the
list of properties with unpaid tax liens.
If the guardian's investigation results in a finding that minors or
incompetents do exist, the guardian must promptly contact the minors or
incompetents in order to see that justice is done. See Romasko, 108 Wis.2d at 38, 321
N.W.2d at 126. This requires
determining what steps can be taken to redeem the property before the final day
for redemption set by the County. We
agree with the amicus curiae[2]
that in this case, if the guardian had been appointed a reasonable time before
the final date of redemption, he could have explored alternatives for
redemption of the property.
At
the foreclosure hearing, a guardian ad litem must represent the minor's or the
incompetent's best interests. This
includes investigating and offering any of the available defenses pursuant to §
75.521(7), Stats.[3] If a default judgment is entered against the
minor or incompetent's properties, the guardian might, considering the
circumstances of the case, request a committee meeting so that the minor might
repurchase the property pursuant to the Waukesha County Code of
Ordinances. An appeal to this court is
also an option of the guardian ad litem.
Here,
it appears that the guardian ad litem was not able to act in Tadych's best
interests. The guardian's ability to
help Tadych redeem his property was severely compromised in that he was
appointed after the final day for redemption. After appointment, Tadych argues that the guardian merely
appeared at the granting of the default judgment and did nothing else. After a review of the record, we agree with
Tadych that his interests were not adequately represented as required by
statute.
We
conclude that from this point forward, a guardian ad litem appointed under §
75.521(12), Stats., must
undertake the duties outlined above in order to properly represent the
interests of incompetents and minors to ensure that justice is
accomplished. We reverse the trial
court's orders and remand with directions that the County set a new final date
of redemption for Tadych's two properties so as to allow Tadych to recover the
properties. In Tadych's brief to the
trial court dated May 9, 1994, he states:
“Said moving party is now no longer a minor child.” Because Tadych is no longer a minor, we will
not order that the trial court appoint a guardian ad litem to represent his
interests on remand. Additionally, we
waive the need to file a new petition of foreclosure.
Because
we conclude that the minor's interests were not properly represented in this
action by the guardian ad litem and reverse on this basis, we need not address
the other issues raised on appeal.
By
the Court.—Orders reversed and
cause remanded with directions.
[1] We reject the
County's waiver argument. The extent of
a guardian ad litem's duties under § 75.521(12)(b), Stats., is an issue of statewide
concern. Therefore, we choose to
address it. See generally Mack
v. State, 93 Wis.2d 287, 296-97, 286 N.W.2d 563, 567 (1980).
[2] At this court's request, attorneys Judith Sperling
Newton and Carol M. Gapen of the Madison law firm of Stafford, Rosenbaum,
Rieser & Hansen submitted an amicus curiae brief and Sperling Newton participated
in oral arguments. We greatly
appreciate the scholarly and thorough analysis presented in the amicus brief
and at oral arguments.
[3] Section
75.521(7)(a), Stats., provides:
Every person having any right, title or interest in or
lien upon any parcel described in such list of tax liens, may serve a duly
verified answer upon the county treasurer for such county, setting forth in
detail, the nature and amount of that person's interest and objecting to the
proposed foreclosure upon one or more of the following grounds only:
1. That the lands in which such person is
interested, described in such list of tax liens, were not liable to taxation,
special assessment, special charge or special tax at the time the tax, special
assessment, special charge or special tax for the nonpayment of which the tax
lien arises, was levied.
2. That the tax, special assessment, special
charge or special tax for the nonpayment of which said tax lien arises, was in
fact paid before the last day of the redemption period provided by law.
3.
That the tax lien is barred by the statute of limitations.