COURT OF
APPEALS DECISION DATED AND
RELEASED SEPTEMBER
24, 1996 |
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. |
No. 95-2938
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT III
In the
Matter of the
Foreclosure
of Tax Liens,
Pursuant
to Section 75.521
Wisconsin
Statutes by
Shawano
County, List of
Tax
Liens for the Years
1981
through 1985. Proceeding
in REM
1986, Number Eleven:
SHAWANO
COUNTY,
Petitioner-Respondent,
v.
JOANN
REDMAN
and
DONALD MINNIECHESKE,
Respondents-Appellants.
APPEAL
from an order of the circuit court for Shawano County: EARL W. SCHMIDT, Judge. Affirmed.
Before
Cane, P.J., LaRocque and Myse, JJ.
PER
CURIAM. JoAnn Redman and Donald Minniecheske—hereafter
collectively called "Redman"—appeal a September 13, 1995 trial court
order that denied her March 11, 1993 motion to vacate a February 1, 1993 tax
lien foreclosure judgment. The trial
court issued the February 1, 1993 foreclosure judgment in response to Redman's
September 8, 1992 motion seeking to vacate an earlier June 29, 1992 foreclosure
judgment and the County's motion in response seeking the entry of a new
foreclosure judgment. Redman's
September 8, 1992 motion claimed that she had never received notice of the
hearing leading to the June 29, 1992 foreclosure judgment. At a December 29, 1992 hearing, the trial
court granted Redman's motion and vacated the June 29, 1992 judgment. However, the trial court then orally granted
a new foreclosure judgment, over her twin objections that she needed time to
obtain a lawyer and that the trial court should recuse itself.
On
February 1, 1993, the trial court entered a written foreclosure judgment
embodying the oral ruling. Redman did
not appeal the February 1, 1993 judgment.
Instead, on March 11, 1993, she filed a motion to vacate the trial
court's oral December 29, 1992 judgment.
On May 1, 1995, she filed an amendment to her March 11, 1993 motion to
vacate. By order entered September 13,
1995, the trial court denied her motion without a hearing. The trial court ruled that the motion was
not timely and that it was frivolous on the merits. On appeal, Redman argues that the trial court should have recused
itself from the December 29, 1992 hearing and should have granted a continuance
for her to obtain counsel. She also
maintains that the trial court actually issued and backdated the February 1,
1993 judgment sometime in September 1995.
On this basis, she claims that her appeal is timely from the February 1,
1993 foreclosure judgment. We reject
Redman's arguments and affirm the trial court's September 13, 1995 postjudgment
order.
We
will not pursue Redman's claim that the trial court backdated the February 1,
1993 judgment sometime in September 1995.
Redman did not raise this factual question before the trial court. We do not consider issues litigants have not
raised in the trial court. Wirth
v. Ehly, 93 Wis.2d 433, 443-44, 287 N.W.2d 140, 145-46 (1980). We also do not make findings of fact. Wurtz v. Fleischman, 97 Wis.2d
100, 107 n.3, 293 N.W.2d 155, 159 n.3 (1980).
In addition, we note that Redman has failed to make a prima facie
showing of judgment backdating. While
Redman claims that an August 1995 examination of the file in the trial court
clerk's office did not reveal the February 1, 1993 judgment, Redman
acknowledges the existence of other documents that refer to the judgment. First, Redman expressly referred to the
February 1, 1993 judgment in her May 1, 1995 amendment to her motion to
vacate. She further made reference to
the February 1, 1993 judgment in a notice filed in June 1995. She fails to explain how a judgment not in
existence until September 1995 could be referred to in her moving papers filed
prior to that date. Her claim is
therefore inherently improbable. Courts
may summarily reject inherently improbable claims. See Lazarus v. American Motors Corp., 21 Wis.2d
76, 84, 123 N.W.2d 548, 552 (1963).
We
have jurisdiction, however, to review the trial court's rejection of Redman's
March 11, 1993 motion to vacate, as amended May 1, 1995, because the court
order denying the motion was not entered until September 13, 1995. Redman's March 11, 1993 motion to vacate
contained material that did not meet the standards of § 806.07, Stats.
It raised issues that were raised or should have been raised in the
original proceedings and that should have been raised in an appeal from the
February 1, 1993 judgment. For
example, she alluded to some of the substantive issues and claims she had
submitted before judgment, such as the following: (1) her land was tax exempt church property; (2) she
held her land free of taxation by virtue of natural rights, homestead rights,
and federal land patent rights; (3) Wis. Const. Art. 1, §§ 14 and 17,
exempted her land from taxation. She
also claimed that the municipality lacked jurisdiction to tax her land and that
a statute of limitations barred the tax liens.
In addition, she reasserted that the trial court should have recused
itself at the December 29, 1992 hearing and should have adjourned the hearing
to permit her to obtain counsel.
The
trial court's vacation of the June 29, 1992 foreclosure judgment and its
issuance of a new one on February 1, 1993 was the final adjudication and res
judicata on all such matters. See
State v. Donohue, 11 Wis.2d 517, 523-24, 105 N.W.2d 844, 847-48
(1960). Redman should have litigated
them then, not by postjudgment motion under § 806.07, Stats.
Further, if Redman wanted to challenge such matters in the court of
appeals, she needed to file a timely appeal the February 1, 1993 judgment, not
file a postjudgment motion and appeal the order denying that motion. Id. Under Ver Hagen v. Gibbons, 55 Wis.2d 21, 26, 197
N.W.2d 752, 755 (1972), litigants may not extend the time to appeal the
judgment by filing a postjudgment motion and then appealing the trial court
order denying the motion. This is what
Redman has done with her postjudgment motion.
We therefore will not address any of her issues or defenses from the
original tax lien foreclosure proceedings.
The
trial court had no duty to recuse itself from Redman's March 11, 1993 motion to
vacate. Although Redman sought recusal
before judgment, she apparently sought to continue this request in the
postjudgment proceedings, and we therefore feel constrained to review the
issue. Redman sought recusal on the
basis of a third-party complaint Redman had filed against the trial court in a
suit brought against her by Orlando Richards.
The Richards' lawsuit ultimately ended in dismissal. Redman claims that the trial court's refusal
to recuse itself makes the foreclosure judgment void. Trial courts have no duty to automatically grant recusal on the
basis of litigant lawsuits. See In
the Matter of Hipp, 5 F.3d 109, 116 (5th Cir. 1993); United
States v. Studley, 783 F.2d 934, 940 (9th Cir. 1985). Otherwise, litigants could disqualify any
trial court by simply naming the judge as a defendant. See Standing Committee v.
Yagman, 55 F.3d 1430, 1443-44 (9th Cir. 1995). Courts have never permitted this and have
the power to disregard false or sham pleadings. See § 757.19(2)(b), Stats. They must grant recusal on the basis of
litigant lawsuits only if the lawsuits cause them to develop actual bias. Cf. State v. McBride,
187 Wis.2d 409, 419, 523 N.W.2d 106, 111 (Ct. App. 1994). Here, Redman has provided nothing showing
actual trial court bias.
We
also specifically reject the merits of one new argument in Redman's March 11,
1993 postjudgment motion, as amended, on why the February 1, 1993 judgment was
void. She claimed that the County
failed to give notice to various lienholders on her land. She cited In Matter of Foreclosure of
Tax Liens, 106 Wis.2d 244, 316 N.W.2d 362 (1982), for the proposition
that the judgment is void whenever the County fails to give notice of
proceedings to one lienholder of record.
The Tax Liens court held that a land contract vendee who
received notice by publication could set aside a tax lien foreclosure judgment
on the ground that the land contract vendor did not get notice by mailing or
publication. In Tax Liens,
the County made no attempt to give the land contract vendor notice by mail or
publication. It did unsuccessfully
attempt to give the land contract vendee notice by mail, and listed the land
contract vendee's interest in the notice given by publication. We reject Redman's claim that the Tax
Liens decision operates to void the February 1, 1993 foreclosure
judgment on Redman's land.
Redman
has identified no lienholder of record who retained a viable interest in the
land yet received no notice by mail or publication. Although the County was unable to give lienholder Orlando
Richards notice by mail, it did by publication. This met the terms of the tax lien foreclosure statutes and
provided Redman no basis to void the judgment.
Redman likewise claimed that Marcella and Delores Lehman had a judgment
lien on the land but never received notice of the proceedings. Redman stated, however, that the Lehman
judgment dated from 1964. By the time
of the foreclosure proceeding's commencement, the twenty-year judgment statute
of limitations had expired on the Lehman twenty-two year-old judgment. See § 893.40, Stats.
By virtue of the statute's expiration, the Lehmans no longer held a
viable lien interest in Redman's land.
The County therefore had no duty to give them notice of the foreclosure
proceedings, and Redman may not rely on their alleged lack of notice as a basis
to attack the foreclosure judgment under Tax Liens.
By
the Court.—Order affirmed.
This
opinion will not be published. See
Rule 809.23(1)(b)5, Stats.