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COURT OF APPEALS DECISION DATED AND RELEASED NOVEMBER 21, 1995 |
NOTICE |
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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(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1130-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
DONALD J. ANDERSON,
Plaintiff-Appellant,
v.
COUNTY OF DOUGLAS,
Defendant-Respondent.
APPEAL from a judgment
of the circuit court for Douglas County:
JOSEPH A. MC DONALD, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Donald Anderson appeals a summary judgment that
dismissed his lawsuit against Douglas County seeking to set aside a tax sale of
his real estate and to recover damages under 42 U.S.C. § 1983.[1] Anderson lost his real estate when he failed
to pay real estate taxes and respond to the tax sale proceedings. The County gave him notice of the
proceedings by publication after attempting without success to provide him
notice by certified mail. The trial
court correctly granted the County summary judgment if the County showed the
nonexistence of material factual disputes and a right to judgment as a matter
of law. Powalka v. State Mut.
Life Assur. Co., 53 Wis.2d 513, 518, 192 N.W.2d 852, 854 (1972). Anderson raises several matters that he
claims voided the tax sale: (1) § 75.12(3), Stats., required the County to exhaust notice by both
personal service and certified mail before resorting to service by publication;
(2) § 75.12(1) required the County to serve him twice, once as the real
estate's owner and again as its occupant; (3) the County resorted prematurely
to service by publication without first making a "diligent search"
for Anderson; (4) the County treasurer falsely swore in affidavits that the
County had attempted personal service and that the real estate had no occupants;
and (5) the County's actions, judged against its true motives, denied him due
process and warranted damages under 42 U.S.C. § 1983. We reject these arguments and affirm the summary judgment.
Chapter 75, Stats., governs tax sales of real
estate. Under § 75.12(1), Stats., no county clerk may issue a tax
deed unless the county treasurer serves "notice of application for tax
deed" upon the owner. If the land
contains a building and if someone has occupied the building for thirty days
before the service of the notice, then the county treasurer must serve the
notice on the building's occupant.
Section 75.12(1), Stats. The notice must specify that the county will
apply for a tax deed after the expiration of three months from the date of
service. Id. The county treasurer has the obligation to
serve the notice for application of tax deed.
Section 75.12(3), Stats. Under § 75.12(3), the treasurer must serve
the notice in the manner that litigants serve a summons and complaint, or serve
it by certified mail, with return receipt demanded of the addressee. If notice cannot be given by use of either
of these methods, the county treasurer must make an affidavit setting forth the
effort to make service and the inability to do so. Id. The
affidavit must be filed with the county clerk, and then notice must be given by
publication through a class three notice under ch. 985, Stats., in the county.
Section 75.12(3), Stats. Section 75.12(3) provides that the county
treasurer's affidavit, together with proof of publication, is deemed completed
service of the notice of application for tax deed. The tax deed itself is "presumptive evidence" of the
regularity of all the proceedings.
Section 75.14(1), Stats.
None of Anderson's
arguments merits relief. First,
§ 75.12(3), Stats., is
unambiguous. Courts construe terms in
such statutes their ordinary meaning. State
v. Skamfer, 176 Wis.2d 304, 307-08, 500 N.W.2d 369, 370 (Ct. App.
1993). On its face, § 75.12(3) does not
purport to bar service by publication unless the County first attempts both
personal service and certified mail service.
It covers these matters in the alternative, using terms like
"or" and "either"; it does not use words like
"and," "both" or "dual," which might signify that
service by publication was a third, not a second resort. This reading is consistent with the
practical view the tax sale statutes take of notice; the legislature did not
intend such statutes to set up technical obstacles. See Carroll v. Richland County, 264 Wis. 96, 99, 58
N.W.2d 434, 436 (1953). We see nothing
in § 75.12(3) that denied the County the freedom to try nothing more than
certified mail before resorting to service by publication.
Second, § 75.12(1), Stats., does not require the County to
make two attempts to serve one person in his separate capacities as owner and
occupant. As noted above, the statutes
approach notice in a practical way. For
example, the county treasurer has no duty to notify all owners of the tax
proceedings; notice to one is sufficient.
Id. Understood in this
context, § 75.12(1) makes notice dependent on the recipient's identity, not
capacity. Owners and occupants get
separate notice only when they are separate parties.
Third, the County
complied with the "diligent search" requirement before resorting to
service by publication. Anderson cites Welsh
v. Mulligan, 251 Wis. 412, 420, 29 N.W.2d 736, 740 (1947), which
construed § 75.12(3), Stats., to
require municipalities to make a "diligent search" for the owner
before they may resort to service by publication. Anderson has not persuaded us that this rule governs service by
certified mail. At any rate, if the
rule does apply, the County's actions qualified as a "diligent search." It sent notice by certified mail to a valid
Anderson address, the post office box number he had furnished. The postal service returned the County's
notice as "unclaimed," not as "addressee unknown." According to information that the postal
service stamped on the undelivered envelope, it had put two postal service
notices in Anderson's post office box within a seven-day period indicating that
the post office had certified mail for him.
We conclude that the "diligent search" rule does not compel
counties to send notices to a landowner's alternative addresses, even if these
are readily ascertainable, as long as counties do furnish notice to a valid
address.
The county treasurer's
affidavits contained no falsehoods that voided the tax proceedings. None of the claimed falsehoods were
material; they pertained to the collateral issues of personal service and
occupancy. As long as the treasurer's
affidavit truthfully covered the material issues, by truthfully stating that
the County attempted service by certified mail to the owner's valid address, it
satisfied the statutes. None of the
cases Anderson has cited held that immaterial or collateral inaccuracies have
the effect of voiding otherwise valid tax sales. See Carroll, 264 Wis. 96, 58 N.W.2d 434; Welsh,
251 Wis. 412, 29 N.W.2d 736; Rosenberg v. Borst, 185 Wis. 223,
201 N.W. 233 (1924); Preston v. Iron County, 105 Wis.2d 346, 314
N.W.2d 131 (Ct. App. 1981). In fact,
§ 75.22, Stats., states that
mistakes and irregularities do not invalidate tax deeds unless they affect
"the groundwork of the tax," or put another way, its fundamental
basis. The collateral matters here
qualify as such inconsequential irregularities; they have no bearing on whether
the County treated Anderson fairly in terms of giving him notice, allowing for
redemption, selling the real estate, and collecting the unpaid taxes. They also do not rebut the presumption
of regularity that attached to the proceedings by virtue of § 75.14(1), Stats.
Last, Anderson has no
grounds to pursue a 42 U.S.C. § 1983 claim against the County for taking
property without due process. He
believes that the County simply used the unpaid taxes as a means to rid the
area of his building, which he claims the County considered an eyesore. The County adhered to the tax sale statutes;
they have a rational connection to municipal revenue raising and provide
landowners adequate notice. The tax
sale thus satisfied substantive and procedural due process; State ex rel.
Shroble v. Prusener, 185 Wis.2d 102, 113-14, 517 N.W.2d 169, 173 (1994)
(substantive); Irby v. Macht, 184 Wis.2d 831, 843, 522 N.W.2d 9,
13-14 (1994) (procedural); regardless whether the County may have had some
additional motive or incentive besides unpaid taxes, for a tax sale. Anderson's position has no merit. The unpaid taxes, together with the
landowner's nonexercise of his redemption rights, give counties the keys to the
real estate; landowners have no basis to later question counties' motives on
the basis of due process. The County
demonstrated the nonexistence of material factual disputes and a right to
judgment as a matter of law. In sum,
the trial court correctly granted the County summary judgment dismissing
Anderson's complaint.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.