Waukesha County v. Tadych

541 N.W.2d 782, 197 Wis. 2d 653, 1995 Wisc. App. LEXIS 1263
CourtCourt of Appeals of Wisconsin
DecidedOctober 11, 1995
DocketNos. 94-0170, 94-2083
StatusPublished

This text of 541 N.W.2d 782 (Waukesha County v. Tadych) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Waukesha County v. Tadych, 541 N.W.2d 782, 197 Wis. 2d 653, 1995 Wisc. App. LEXIS 1263 (Wis. Ct. App. 1995).

Opinion

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.

[657]*657Tadych 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 ... 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 [658]*658trial court and should not be an issue on appeal.11n 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 inrem 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 át the date of filing such list. Such guardian ad litem may be appointed by the court without notice, and [659]*659the 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:

[660]*660The 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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Nick v. Toyota Motor Sales, U.S.A., Inc.
466 N.W.2d 215 (Court of Appeals of Wisconsin, 1991)
Romasko v. City of Milwaukee
321 N.W.2d 123 (Wisconsin Supreme Court, 1982)
In Matter of Estate of Trotalli
366 N.W.2d 879 (Wisconsin Supreme Court, 1985)
MacK v. State
286 N.W.2d 563 (Wisconsin Supreme Court, 1980)
Marshall-Wisconsin Co. v. Juneau Square Corp.
406 N.W.2d 764 (Wisconsin Supreme Court, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
541 N.W.2d 782, 197 Wis. 2d 653, 1995 Wisc. App. LEXIS 1263, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waukesha-county-v-tadych-wisctapp-1995.