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Wisner v. Vandelay Investments, L.L.C.

Supreme Court of Nebraska

August 24, 2018

Robin J. Wisner, as Personal Representative of the Estate of Gladys P. Wisner, deceased. APPELLANT,
v.
Vandelay Investments, L.L.C., a Nebraska limited liability COMPANY, ET AL., APPELLEES.

         1. Standing: Jurisdiction: Parties. Standing is a jurisdictional component of a party's case because only a party who has standing may invoke the jurisdiction of a court.

         2. Jurisdiction: Appeal and Error. The question of jurisdiction is a question of law, upon which an appellate court reaches a conclusion independent of the trial court.

         3. Equity: Quiet Title. A quiet title action sounds in equity.

         4. Equity: Appeal and Error. On appeal from an equity action, an appellate court tries factual questions de novo on the record and, as to questions of both fact and law, is obligated to reach a conclusion independent of the conclusion reached by the trial court, provided that where credible evidence is in conflict in a material issue of fact, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.

         5. 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.

         6. Standing: Words and Phrases. Standing is the legal or equitable right, title, or interest in the subject matter of the controversy.

         7. Jurisdiction: Standing. The requirement of standing is fundamental to a court's exercise of jurisdiction, and either a litigant or a court before which a case is pending can raise the question of standing at any time during the proceeding.

         [300 Neb. 826] 8. Title: Deeds: Tax Sale: Standing. Neb. Rev. Stat. § 77-1844 (Reissue 2009) sets forth the conditions precedent to questioning title conveyed under a tax deed; to obtain standing to redeem property after the issuance of a tax deed, even if title under a tax deed is void or voidable, a party must satisfy these conditions precedent.

         9. Title: Deeds: Tax Sale: Public Officers and Employees. To comply with Neb. Rev. Stat. § 77-1844 (Reissue 2009), a party only needs to show that it has tendered the tax payment to the treasurer, not that the taxes have actually been paid.

         10. Pleadings: Evidence: Words and Phrases. A judicial admission is a formal act done in the course of judicial proceedings which is a substitute for evidence, thereby waiving or dispensing with the production of evidence by conceding for the purpose of litigation that the proposition of fact alleged by the opponent is true.

         11. Jurisdiction. While parties cannot confer subject matter jurisdiction upon a judicial tribunal by either acquiescence or consent, nor may subject matter jurisdiction be created by waiver, estoppel, consent, or conduct of the parties, such does not prevent a party from conclusively admitting the truth of an underlying fact required to establish subject matter jurisdiction by judicial admission.

         12. Pleadings: Evidence. Judicial admissions must be unequivocal, deliberate, and clear, and not the product of mistake or inadvertence.

         13. Pleadings: Intent. A judicial admission does not extend beyond the intendment of the admission as clearly disclosed by its context.

         14. Pleadings: Words and Phrases. Generally, an admission made in a pleading on which the trial is had is more than an ordinary admission; it is a judicial admission.

         15. Pleadings: Proof. It is an elementary rule of pleading that matters admitted by the pleadings need not be proved.

         16. Title: Deeds: Tax Sale: Taxes: Evidence. A showing pursuant to Neb. Rev. Stat. § 77-1844 (Reissue 2009) of taxes paid must be made by the evidence and not by allegations in the pleadings alone.

         17. Real Estate: Taxes: Tax Sale: Words and Phrases. Under Neb. Rev. Stat. § 77-1801 et seq. (Reissue 2009, Cum. Supp. 2016 & Supp. 2017), the term "redemption" refers to paying the amount shown on the certificate and all subsequent taxes, along with the interest accrued thereon and any statutory fees.

         18. Pleadings: Evidence: Waiver. A party may waive its right to rely on an opponent's admission by failing to object to the opponent's offer of contrary evidence or introducing contrary evidence itself.

         [300 Neb. 827] 19. Pleadings: Evidence: Parties. A party is bound to its admission absent the court's relieving it, in exercise of the court's judicial discretion, from that consequence.

         20. Appeal and Error. An argument not presented to or decided by the trial court is not appropriate for consideration on appeal.

         21. Statutes: Legislature: Intent. Components of a series or collection of statutes pertaining to a certain subject matter are in pari materia and should be conjunctively considered and construed to determine the intent of the Legislature, so that different provisions are consistent, harmonious, and sensible.

         22. Title: Deeds: Tax Sale: Standing: Public Officers and Employees: Case Disapproved. To satisfy the tax payment requirement in Neb. Rev. Stat. § 77-1844 (Reissue 2009), a party must show the tender or payment of taxes due to the county treasurer; Hauxwell v. Henning, 291 Neb. 1, 863 N.W.2d 798');">863 N.W.2d 798 (2015), is disapproved to the extent it can be read to authorize satisfying the standing requirement in § 77-1844 by tender or payment to the tax deed holder.

         23. Title: Deeds: Tax Sale: Statutes. The statutory prerequisites to defeating title, in Neb. Rev. Stat. § 77-1843 (Reissue 2009), apply only to those tax deeds made after substantial compliance with Neb. Rev. Stat. §§ 77-1831 to 77-1842 (Reissue 2009, Cum. Supp. 2016 & Supp. 2017).

         24. Title: Deeds: Tax Sale: Proof: Presumptions: Evidence. A county treasurer's tax deed is presumptive evidence that the procedures required by law to make a good and valid tax sale and vest title in the purchaser were done. The presumption is not conclusive and may be rebutted, but the burden is upon the party attacking the validity of such a deed to show by competent evidence some jurisdictional defect voiding the deed.

         25. Tax Sale: Service of Process. Under Neb. Rev. Stat. § 77-1832 (Reissue 2009), service need only be provided to the owner of record at the address where the property tax statement was mailed and may only be done by certified mail, return receipt requested.

         26. Statutes. A court must attempt to give effect to all parts of a statute, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless.

         27. Tax Sale: Notice: Service of Process: Words and Phrases. Under Neb. Rev. Stat. § 77-1834 (Cum. Supp. 2016), the phrase "diligent inquiry" requires the tax certificate holder to obtain the address where the property tax statement was mailed in order to send notice by certified mail before moving to service by publication.

         [300 Neb. 828] 28. Statutes: Appeal and Error. Generally, 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 which are plain, direct, and unambiguous.

         29. Statutes. A statute can be considered ambiguous when a particular interpretation from the face of the statute could lead to an anomalous, unusual, or absurd result.

         30. __. It is impermissible to follow a literal reading that engenders absurd consequences where there is an alternative interpretation that reasonably effects a statute's purpose.

         31. Statutes: Intent. In the exposition of statutes, the reason and intention of the lawgiver will control the strict letter of the law when the latter would lead to palpable injustice or absurdity.

         32. Real Estate: Taxes: Tax Sale. The overall objective of the certificate method for delinquent taxes is the recovery of unpaid taxes on real property.

         33. Statutes: Courts: Words and Phrases. A term of art is a word or phrase having a specific, precise meaning in a given specialty apart from its general meaning in ordinary contexts. The Nebraska Supreme Court has ascribed the term of art meaning to statutory terms when necessitated by the statute's context.

         34. Tax Sale: Notice: Service of Process: Words and Phrases. The word "found" in Neb. Rev. Stat. § 77-1834 (Cum. Supp. 2016) means "able to be served."

         35. Tax Sale: Notice: Service of Process: Proof. Under Neb. Rev. Stat. § 77-1834 (Cum. Supp. 2016), a tax certificate holder may provide service by publication to an owner of record who was not able to be served by certified mail at the address where the property tax statement was mailed, upon proof of compliance with Neb. Rev. Stat. § 77-1832 (Reissue 2009) if the owner, in fact, lives at such address.

         36. Courts: Judgments: Appeal and Error. Upon further review from a judgment of the Nebraska Court of Appeals, the Nebraska Supreme Court will not reverse a judgment which it deems to be correct simply because its reasoning differs from that employed by the Court of Appeals.

         37. Tax Sale: Notice: Proof. Under Neb. Rev. Stat. § 77-1835 (Cum. Supp. 2016), a proof of publication needs to state only that notice was published in the manner provided in Neb. Rev. Stat. § 77-1834 (Cum. Supp. 2016).

         38. Affidavits. In the absence of a sufficient showing to the contrary, the affidavit of the publisher that a newspaper was one of general circulation in the county must be held sufficient to establish the fact.

         [300 Neb. 829] 39. Tax Sale: Notice: Words and Phrases. Under Neb. Rev. Stat. § 77-1834 (Cum. Supp. 2016), the plain meaning of the word "in" shows that a newspaper only need be generally circulated within the county, not throughout the entire county.

         40. Courts: Appeal and Error. Upon reversing a decision of the Nebraska Court of Appeals, the Nebraska Supreme Court may consider, as it deems appropriate, some or all of the assignments of error the Court of Appeals did not reach.

         41. Deeds: Tax Sale. In order to defeat a tax deed, a party must show that it satisfied the conditions precedent in Neb. Rev. Stat. § 77-1843 (Reissue 2009).

         42. Tax Sale: Mental Health: Time. Neb. Rev. Stat. § 77-1827 (Reissue 2009) extends the redemption period for a mental disorder only if the owner had a mental disorder at the time of the property's sale.

         43. Statutes: Presumptions: Legislature: Intent. In interpreting a statute, a court is guided by the presumption that the Legislature intended a sensible rather than absurd result in enacting the statute.

         44. Tax Sale: Mental Health: Words and Phrases. A person with a "mental disorder" under Neb. Rev. Stat. § 77-1827 (Cum. Supp. 2016) is one who suffers from a condition of mental derangement which actually prevents the sufferer from understanding his or her legal rights or from instituting legal action, and a mental disorder within the meaning of § 77-1827 is an incapacity which disqualifies one from acting for the protection of one's rights.

         45. Equity. Equity strives to do justice; it is not a rigid concept, but, instead, is determined on a case-by-case basis according to concepts of justice and fairness.

         Petition for further review from the Court of Appeals, Moore. Chief Judge, and Inbody and Riedmann, Judges, on appeal thereto from the District Court for Lincoln County, Richard A. Birch, Judge. Judgment of Court of Appeals reversed, and cause remanded with directions.

          David W. Pederson, of Pederson & Troshynski, for appellant.

          Robert S. Lannin and Chris S. Schmidt, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P, for appellee Vandelay. Investments, L.L.C.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ.

         [300 Neb. 830] FUNKE, J.

         Robin J. Wisner, personal representative of the estate of Gladys P. Wisner, deceased, appealed from a district court judgment that quieted title to certain property in favor of Vandelay Investments, L.L.C. (Vandelay), and dismissed his complaint-which requested that the court set aside Vandelay's tax deed and permit him to exercise a right of redemption. The Nebraska Court of Appeals reversed the district court's decision and remanded the cause after finding Vandelay had failed to comply with the statutory notice requirements before applying for the tax deed, which failure rendered Vandelay's deed void.

         On further review, we conclude that (1) Robin had standing to question Vandelay's tax deed, (2) Vandelay complied with the statutory notice requirements before applying for the tax deed, and (3) Robin failed to prove that the extension to the statutory redemption period for an owner with a mental disorder applied. Therefore, we reverse the decision of the Court of Appeals and remand the cause with directions that the Court of Appeals affirm the judgment of the district court.

         I. BACKGROUND

         1. Statutory Framework

         This case involves the purchase of real property due to delinquent real estate taxes.[1] The purchaser of any real property sold by the county treasurer for taxes is entitled to a certificate in writing, commonly known as a tax certificate or tax sale certificate.[2] This certificate represents a transfer of the state's lien on the property to the purchaser and describes the property, the amount paid by the purchaser, and the date that the purchaser will be entitled to a deed.[3] Tax certificates can [300 Neb. 831] be assigned by endorsement, and the assignee steps into the shoes of the purchaser.[4]

         A property owner may redeem his or her property by paying the county treasurer the amount shown on the certificate and all subsequent taxes, along with the interest accrued thereon and any statutory costs.[5] If the property is not redeemed within 3 years, however, the tax certificate holder may pursue either one of two options: (1) apply for a deed of conveyance for the property, commonly known as a tax deed, with the county treasurer[6] or (2) proceed in district court to foreclosure on its lien and compel the sale of the property.[7] Tax sale certificates and the sale of tax certificates are governed by chapter 77, article 18, of the Nebraska Revised Statutes, and the foreclosure of tax certificates is governed by chapter 77, article 19, of the Nebraska Revised Statutes for all tax sale certificates sold and issued between January 1, 2010, and December 31, 2017.[8]

         Vandelay elected to pursue the tax deed method. Under this method, the holder of the tax certificate has a 6-month period, commencing 3 years from the date of the sale of the property, to apply for a tax deed from the county treasurer.[9]Upon a county treasurer's delivery of the tax deed to the tax certificate holder, a property owner loses the ability to redeem the property through the county treasurer.[10] If the certificate holder waits longer than 3 years 6 months from the sale to apply for a tax deed, the certificate ceases to be valid and the lien of taxes for which the property was sold is discharged.[11] [300 Neb. 832] However, at least 3 months before applying for the tax deed, the holder of the tax certificate must serve the record owner and encumbrancers of record with sufficient notice that application for a tax deed will be made.[12]

         After a tax deed has been issued, the owner of the property may recover the property by proving the tax deed issued to the tax certificate holder is either void or voidable. A tax deed is void if the tax certificate holder did not substantially comply with the notice requirements.[13] A tax deed is voidable if the property owner has a right to redeem the property and has exercised such right.[14] While a property owner's ability to redeem property typically ends upon the delivery of a tax deed, an owner with a mental disorder at the time of the property's sale may redeem the property within 5 years from the date of the sale.[15]

         Here, Robin claims that Vandelay did not sufficiently comply with the notice requirements to obtain the tax deed. He further contends that he has a right to redemption under this extended redemption period due to the mental disorder of Gladys, the record owner of the property.

         2. Issuance of Tax Deed to Vandelay

         The real estate involved in this action consists of 480 acres, containing irrigated cropland, rangeland, and a homestead; is located about 9 miles southeast of North Platte, Nebraska; and has the following legal description: "The North Half (N/4) and the North Half of the South Half (WASlA) of Section Twenty-Nine (29), Township Thirteen (13) North, Range Twenty-Nine (29) West of the 6th P.M., in Lincoln County, Nebraska."

         Gladys and her husband moved onto the property in 1949 and inherited it upon the passing of Gladys' father in 1971. [300 Neb. 833] They had two sons, Robin and Roger Wisner, and two daughters. After Gladys' husband died in 2007, Roger primarily cared for Gladys and handled her affairs until his own death in 2009. Robin then assisted Gladys in moving from the homestead to a retirement community and arranged for her bills to be paid from her trust by a bank's trust department.

         Robin testified he assumed the trust department was paying the real estate taxes, because he thought Roger had probably paid them from the trust previously. While Robin stated that he had access to semiannual records from the trust, he testified that he did not typically check them closely or at all and that he never saw that the real estate taxes were being paid from it.

         In 2010, the real estate taxes on the property became delinquent. In March 2011, the Lincoln County treasurer sold a tax sale certificate on the property to Acron Business Services, Inc. In February 2014, Vandelay purchased the tax sale certificate from Acron Business Services. Randy James, one of Vandelay's owners, obtained the address where Gladys received her property tax statements, which was that of the retirement community. In March 2014, Vandelay sent notice of its intent to apply for a tax deed to Gladys at that address by certified mail with a return receipt requested, which was returned as "unclaimed."

         Despite the return of the certified mailing, James believed he had Gladys' actual address because it was not returned as sent to a vacant address or not deliverable as addressed. In addition, James had found a newspaper article, dated June 11, 2011, indicating that Gladys, in fact, lived at the retirement community.

         Vandelay then published notice of its intent to apply for a tax deed in the Sutherland Courier-Times newspaper (Courier-Times) for 3 consecutive weeks. Evidence was presented that the Courier-Times covers events affecting Lincoln County, Nebraska, and residents in Sutherland, Hershey, and Paxton, Nebraska, and that approximately 1, 300 weekly editions are sent to subscribers and distributed to racks in those three [300 Neb. 834] communities. In ZIP codes covering North Platte, there are about 100 Courier-Times subscribers but no distribution racks. Vandelay also sent a copy of the publicized notice to Gladys' address by first-class mail, which was not returned.

         In August 2014, Vandelay applied for a tax deed. Included with its application were a copy of the certified mail return receipt, a proof of publication in the Courier-Times, and an affidavit from James attesting that he had complied with the service requirements. The proof of publication attested that the Courier-Times is a legal newspaper in general circulation that is published in Sutherland and that the attached notice was published for 3 consecutive weeks, dates specified. The county treasurer delivered a tax deed to the property to Vandelay in September 2014.

         Through the relevant period, the property was under lease, but the lease was not recorded. Shortly after the tax deed was filed, however, the lessee informed Robin that a deed had been issued in Vandelay's favor. Robin, as the holder of a power of attorney for Gladys, attempted to redeem the tax sale certificate with Vandelay, which Vandelay rejected.

         3. District Court Proceedings

         Gladys, by and through Robin, filed a complaint against Vandelay, requesting to have Vandelay's tax deed voided, have her deed redeemed pursuant to the mental disorder extension, and title quieted in her name. Vandelay filed a counterclaim seeking to quiet title in its favor. Robin was substituted as the party plaintiff after Gladys' death.

         The court ruled Vandelay had complied with the statutory requirements for notice and publication. It reasoned that "[i]f Gladys could not be served after compliance by [Vandelay] with [§] 77-1832, she was therefore not found for service within the meaning of [§] 77-1834." The court also found the publication in the Courier-Times complied with the statutory requirement. Further, the court ruled Robin failed to prove Gladys had a mental disorder, and it rejected Robin's [300 Neb. 835] equity argument. Thus, the court dismissed Robin's complaint with prejudice and quieted title in favor of Vandelay. Robin filed a timely appeal.

         4. Court of Appeals Proceedings

         Before the Court of Appeals, Robin assigned, restated, that the district court erred in (1) finding Vandelay complied with the statutory notice and publication requirements for obtaining a treasurer's tax deed, (2) finding Robin failed to prove Gladys suffered from a mental disorder, and (3) failing to use its equitable authority to remedy the situation.

         The Court of Appeals reversed the district court's decision and remanded the cause for further proceedings after holding that Gladys was entitled to redeem the property because Vandelay had not served Gladys with notice.[16] It reasoned that Vandelay's notice by certified mail was insufficient because it was returned as "'unclaimed.'"[17] Further, the Court of Appeals stated that notice by publication could not be relied on because Vandelay knew Gladys' address, so she had been "found."[18] The Court of Appeals did not reach Robin's second and third assignments of error.

         Vandelay filed a timely petition for further review, which this court granted.

         II. ASSIGNMENTS OF ERROR

         Vandelay assigns, reordered and restated, that the Court of Appeals erred in (1) not determining Robin lacks standing to challenge the tax deed, under § 77-1844; (2) interpreting § 77-1834 not to permit service by publication in this case; (3) not interpreting the term "found" as the equivalent of being "served"; (4) voiding Vandelay's tax deed and determining Gladys was entitled to redeem the property; and (5) failing to [300 Neb. 836] acknowledge Vandelay's sending of a copy of the publication notice by first-class mail to Gladys' address of record, which copy was not returned, as accomplishing service.

         III. STANDARD OF REVIEW

         Standing is a jurisdictional component of a party's case because only a party who has standing may invoke the jurisdiction of a court.[19] The question of jurisdiction is a question of law, upon which an appellate court reaches a conclusion independent of the trial court.[20]

         A quiet title action sounds in equity.[21] On appeal from an equity action, an appellate court tries factual questions de novo on the record and, as to questions of both fact and law, is obligated to reach a conclusion independent of the conclusion reached by the trial court, provided that where credible evidence is in conflict in a material issue of fact, the appellate court considers and may give weight to the fact that the trial judge heard and observed the witnesses and accepted one version of the facts rather than another.[22]

         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.[23]

         IV. ANALYSIS

         1. Robin Has Standing to Challenge Vandelay's Tax Deed

         Vandelay contends Robin lacks standing to challenge its tax deed. It argues Robin did not satisfy a condition precedent [300 Neb. 837] to questioning the validity of its tax deed, under § 77-1844. because he failed to offer any evidence that he either paid or tendered payment of the taxes due on the property to the county treasurer. Vandelay further argues that its response to Robin's allegation in his pleading-that he tendered payment to the county treasurer-cannot be considered a judicial admission regarding tender to the county treasurer because its statement was not unequivocal, clear, or deliberate.

         Robin argues Vandelay's answer was a judicial admission, which acted as a substitute for such evidence by conclusively admitting the fact's truth in this case. He also argues tendering payment to Vandelay satisfied condition precedent of § 77-1844, citing Hauxwell v. Henning[24]

         (a) Statutory Requirements to Obtain Standing to Challenge Tax Deed

         Standing is the legal or equitable right, title, or interest in the subject matter of the controversy.[25] The requirement of standing is fundamental to a court's exercise of jurisdiction, and either a litigant or a court before which a case is pending can raise the question of standing at any time during the proceeding.[26] A party invoking a court's or tribunal's jurisdiction bears the burden of establishing the elements of standing.[27]

         To obtain standing to redeem property after the issuance of a tax deed, even if title under a tax deed is void or voidable, a party must satisfy the requirements of § 77-1844.[28]Section 77-1844 sets forth the conditions precedent to questioning title conveyed under a tax deed.[29] Under § 77-1844, [300 Neb. 838] a party must prove the person under whom he or she claims title (1) had title to the property at the time of the tax sale and (2) paid all taxes due upon the property. To comply with § 77-1844, a party only needs to show that it has tendered the tax payment to the treasurer, not that the taxes have actually been paid.[30] Payment or tender thereof may be made before or during the trial, or before final judgment.[31]

         (b) Vandelay's Answer Constituted Judicial Admission That Robin Tendered Payment of Taxes Due to County Treasurer

         A judicial admission is a formal act done in the course of judicial proceedings which is a substitute for evidence, thereby waiving or dispensing with the production of evidence by conceding for the purpose of litigation that the proposition of fact alleged by the opponent is true.[32]While parties cannot confer subject matter jurisdiction upon a judicial tribunal by either acquiescence or consent, nor may subject matter jurisdiction be created by waiver, estoppel, consent, or conduct of the parties, [33] such does not prevent a party from conclusively admitting the truth of an underlying fact required to establish subject matter jurisdiction by judicial admission.

         This distinction is illustrated by J.S. v. Grand Island Public Schools, [34] where we held the district court lacked subject matter jurisdiction because the appellant did not serve the appellee with a copy of the petition after the appellee waived such service. Here, contrariwise, the allegation is that Vandelay admitted the taxes had actually been tendered to the county treasurer, a condition precedent for standing.

         [300 Neb. 839] Judicial admissions must be unequivocal, deliberate, and clear, and not the product of mistake or inadvertence.[35] A judicial admission does not extend beyond the intendment of the admission as clearly disclosed by its context.[36]

         (i) Admission in Pleading May Serve as Sufficient Evidence to Satisfy Standing Requirement in § 77-1844

         We begin by addressing Vandelay's argument that an admission in its answer could not satisfy the standing requirement. Generally, an admission made in a pleading on which the trial is had is more than an ordinary admission; it is a judicial admission.[37] It is an elementary rule of pleading that matters admitted by the pleadings need not be proved.[38] Despite these propositions, Vandelay points to Hauxwell, where we stated that for the purposes of § 77-1844, "[t]he showing of taxes paid must be made by the evidence and not by the pleadings alone."[39]

         Our proposition in Hauxwell originated in the modification of our opinion on rehearing of Cornell v. Maverick Loan & Trust Co.,[40] which affirmed our opinion with an explanation that we had not referenced the predecessor statute to ยง 77-1844 because the taxes were clearly not shown to have been paid. While we stated in our opinion on rehearing that the pleadings alone were insufficient to provide such proof, our discussion of the facts in our initial decision reveals that the plaintiff had alleged tender of payment in its complaint but does not state the fact was admitted by the ...


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