Wisner v. Vandelay Investments

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/24/2018 09:08 AM CDT
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Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
WISNER v. VANDELAY INVESTMENTS
Cite as 300 Neb. 825
Robin J. Wisner, as Personal R epresentative of
the Estate of Gladys P. Wisner, deceased,
appellant, v. Vandelay Investments,
L.L.C., a Nebraska limited liability
company, et al., appellees.
___ N.W.2d ___
Filed August 24, 2018. No. S-16-451.
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 ques-
tion of law, upon which an appellate court reaches a conclusion indepen-
dent 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 appel-
late court tries factual questions de novo on the record and, as to ques-
tions 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 ques-
tion 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.
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WISNER v. VANDELAY INVESTMENTS
Cite as 300 Neb. 825
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 issu-
ance 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 substi-
tute 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, deliber-
ate, 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 cer-
tificate 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.
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WISNER v. VANDELAY INVESTMENTS
Cite as 300 Neb. 825
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, har-
monious, 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 (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 defeat-
ing 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 prop-
erty tax statement was mailed in order to send notice by certified mail
before moving to service by publication.
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WISNER v. VANDELAY INVESTMENTS
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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 necessi-
tated 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 sim-
ply 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 pub-
lished 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 circula-
tion in the county must be held sufficient to establish the fact.
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WISNER v. VANDELAY INVESTMENTS
Cite as 300 Neb. 825
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 “men-
tal 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 R iedmann, Judges, on appeal
thereto from the District Court for Lincoln County, R ichard
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.
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WISNER v. VANDELAY INVESTMENTS
Cite as 300 Neb. 825
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 disor-
der 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 prop-
erty 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
1
See Neb. Rev. Stat. § 77-1801 et seq. (Reissue 2009, Cum. Supp. 2016 &
Supp. 2017) and § 77-1901 et seq. (Reissue 2009 & Cum. Supp. 2016).
2
§ 77-1818.
3
Coffin v. Old Line Life Ins. Co., 138 Neb. 857, 295 N.W. 884 (1941);
§ 77-1818; Neb. Rev. Stat. § 77-203 (Reissue 2009).
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WISNER v. VANDELAY INVESTMENTS
Cite as 300 Neb. 825
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 convey-
ance for the property, commonly known as a tax deed, with
the county treasurer 6 or (2) proceed in district court to fore-
closure 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
4
§ 77-1822.
5
§§ 77-1824 and 77-1830.
6
§ 77-1837. See, generally, § 77-1801 et seq.
7
§ 77-1902. See, generally, § 77-1901 et seq.
8
§ 77-1837.01.
9
§ 77-1837.
10
§ 77-1824.
11
§ 77-1856.
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WISNER v. VANDELAY INVESTMENTS
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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 appli-
cation for a tax deed will be made.12
After a tax deed has been issued, the owner of the prop-
erty 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 com-
ply 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 (N1⁄2) and
the North Half of the South Half (N1⁄2S1⁄2) 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.
12
§ 77-1831 (Cum. Supp. 2012).
13
Ottaco Acceptance, Inc. v. Larkin, 273 Neb. 765, 733 N.W.2d 539 (2007).
See §§ 77-1842 and 77-1843.
14
§ 77-1843.
15
§ 77-1827.
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WISNER v. VANDELAY INVESTMENTS
Cite as 300 Neb. 825
They had two sons, Robin and Roger Wisner, and two daugh-
ters. 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 home-
stead 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 testi-
fied 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 delin-
quent. 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 cer-
tificate 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
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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 statu-
tory 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
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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 A ppeals 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 obtain-
ing 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 hold-
ing 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
16
See Wisner v. Vandelay Investments, No. A-16-451, 2017 WL 2399492
(Neb. App. May 30, 2017) (selected for posting to court website).
17
Id. at *4.
18
Id.
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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
[1,2] Standing is a jurisdictional component of a party’s case
because only a party who has standing may invoke the jurisdic-
tion of a court.19 The question of jurisdiction is a question of
law, upon which an appellate court reaches a conclusion inde-
pendent of the trial court.20
[3,4] 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 conclu-
sion 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 ver-
sion of the facts rather than another.22
[5] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below.23
IV. ANALYSIS
1. Robin H as 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
19
Applied Underwriters v. S.E.B. Servs. of New York, 297 Neb. 246, 898
N.W.2d 366 (2017).
20
J.S. v. Grand Island Public Schools, 297 Neb. 347, 899 N.W.2d 893
(2017).
21
Royal v. McKee, 298 Neb. 560, 905 N.W.2d 51 (2017).
22
Id.
23
J.S., supra note 20.
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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 admis-
sion regarding tender to the county treasurer because its state-
ment 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 ten-
dering payment to Vandelay satisfied condition precedent of
§ 77-1844, citing Hauxwell v. Henning.24
(a) Statutory Requirements to Obtain
Standing to Challenge Tax Deed
[6,7] Standing is the legal or equitable right, title, or inter-
est in the subject matter of the controversy.25 The requirement
of standing is fundamental to a court’s exercise of jurisdic-
tion, and either a litigant or a court before which a case is
pending can raise the question of standing at any time dur-
ing the proceeding.26 A party invoking a court’s or tribunal’s
jurisdiction bears the burden of establishing the elements
of standing.27
[8,9] To obtain standing to redeem property after the issu-
ance 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 ques-
tioning title conveyed under a tax deed.29 Under § 77-1844,
24
Hauxwell v. Henning, 291 Neb. 1, 863 N.W.2d 798 (2015).
25
Landrum v. City of Omaha Planning Bd., 297 Neb. 165, 899 N.W.2d 598
(2017).
26
Id.
27
Applied Underwriters, supra note 19.
28
See, Hauxwell, supra note 24; Ottaco Acceptance, Inc., supra note 13.
29
Ottaco Acceptance, Inc., supra note 13.
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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
[10,11] A judicial admission is a formal act done in the
course of judicial proceedings which is a substitute for evi-
dence, 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 judi-
cial admission.
This distinction is illustrated by J.S. v. Grand Island Public
Schools,34 where we held the district court lacked subject mat-
ter jurisdiction because the appellant did not serve the appellee
with a copy of the petition after the appellee waived such serv­
ice. Here, contrariwise, the allegation is that Vandelay admitted
the taxes had actually been tendered to the county treasurer, a
condition precedent for standing.
30
Hauxwell, supra note 24.
31
Ottaco Acceptance, Inc., supra note 13.
32
Id.
33
J.S., supra note 20.
34
Id.
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[12,13] 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
[14,15] We begin by addressing Vandelay’s argument that an
admission in its answer could not satisfy the standing require-
ment. 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 plead-
ings alone.”39
Our proposition in Hauxwell originated in the modifica-
tion of our opinion on rehearing of Cornell v. Maverick Loan
& Trust Co.,40 which affirmed our opinion with an explana-
tion that we had not referenced the predecessor statute to
§ 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 defendant.
35
In re Estate of Radford, 297 Neb. 748, 901 N.W.2d 261 (2017).
36
Lewison v. Renner, 298 Neb. 654, 905 N.W.2d 540 (2018).
37
Id.
38
Id.
39
Hauxwell, supra note 24, 291 Neb. at 6, 863 N.W.2d at 802.
40
Cornell v. Maverick Loan & Trust Co., 95 Neb. 9, 144 N.W. 1074 (1914),
modified on denial of rehearing 95 Neb. 842, 147 N.W. 697.
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Thus, we do not find a conflict between our statement in
Cornell and our propositions of law concerning admissions
in pleadings.
[16] Nevertheless, as a matter of clarity, we amend our
proposition from Cornell as follows: The showing pursuant to
§ 77-1844 of taxes paid must be made by the evidence and not
by allegations in the pleadings alone.
(ii) Vandelay Admitted Robin Tendered
Redemption to County Treasurer
Regarding Robin’s efforts to pay the taxes due on the
property, paragraph 16 of the complaint alleges, “[Robin]
presented the redemption to [Vandelay] and to the Lincoln
County Treasurer within forty-five (45) days of [Vandelay’s]
Application for Tax Deed, but the County Treasurer declined to
accept the redemption for filing”; Vandelay’s answer “[a]dmits
that Lincoln County Treasurer declined to accept [Robin’s]
redemption, but denies the remaining allegations of para-
graph 16.”
Vandelay asserts that Robin’s allegation should be read as
two separate allegations: (1) Robin presented redemption to
Vandelay and the county treasurer and (2) the county treasurer
declined to accept Robin’s redemption. It argues its answer
admitted only the second allegation and denied the first alle-
gation. It argues that reading its answer to admit that Robin
tendered payment to the county treasurer would give no effect
to its denial.
We disagree with Vandelay’s interpretation. Vandelay’s
admission that the county treasurer declined to accept Robin’s
redemption necessarily admits Robin tendered redemption to
the county treasurer; redemption cannot be denied if it was
never offered. Despite Vandelay’s contention, this interpreta-
tion gives effect to its general denial because the allegation that
Robin tendered payment to Vandelay is completely separate
from the allegation concerning the county treasurer.
[17] Further, we find that this admission is clear regarding
the tender of all of the taxes due on the property. As stated
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above, redemption under § 77-1801 et seq. refers to paying
the amount shown on the certificate and all subsequent taxes,
along with the interest accrued thereon and any statutory fees.41
Thus, Vandelay’s response conclusively admitted Robin ten-
dered payment of all taxes due on the property to the county
treasurer and acted as a substitute for evidence of such, dis-
pensing with Robin’s need to produce such evidence for the
purpose of this case.
[18] Vandelay’s additional arguments that its admission was
an inadvertency and that Robin waived its judicial admission
are unavailing. In Robison v. Madsen,42 we recognized that 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.43 Robin’s testimony
that he tendered payment to Vandelay and that the taxes were
unpaid at the time of trial was not contrary to the judicial
admission concerning Robin’s tender of payment to the county
treasurer. Accordingly, Robin did not offer contrary evidence
waiving Vandelay’s admission.
[19,20] Further, a party is bound to its admission absent the
court’s relieving it, in exercise of the court’s judicial discre-
tion, from that consequence.44 The requirements of § 77-1844
are clearly stated in the statute and well established in our case
law. If Vandelay had not intended to admit that Robin tendered
payment to the county treasurer, it should have raised the
issue in the district court, where it could have requested to be
relieved of the consequence of its admission. An argument not
presented to or decided by the trial court is not appropriate for
consideration on appeal.45 Therefore, Vandelay cannot argue
41
§§ 77-1824 and 77-1830.
42
Robison v. Madsen, 246 Neb. 22, 516 N.W.2d 594 (1994).
43
Id. (citing Collision Center Paint & Body v. Campbell, 773 S.W.2d 354
(Tex. App. 1989); Jenni v. Gamel, 602 S.W.2d 696 (Mo. App. 1980); and
31A C.J.S. Evidence § 381 c. (1964)).
44
See Kipf v. Bitner, 150 Neb. 155, 33 N.W.2d 518 (1948).
45
Fetherkile v. Fetherkile, 299 Neb. 76, 907 N.W.2d 275 (2018).
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for the first time on appeal that it should not be bound by the
plain meaning of its admission.
The evidence presented at trial also clearly established that
Gladys had title to the property at the time of its sale. Therefore,
Robin proved that he had standing to question Vandelay’s tax
deed, under § 77-1844.
(c) Tender of Payment to Tax Deed Holder
Is Not Sufficient to Obtain Standing
Robin also argued that we held in Hauxwell that payment
or tender of payment to a deed holder is sufficient to obtain
standing, under § 77-1844.46 We address this argument to
clarify our holding in Hauxwell.
In Hauxwell, Selma B. Hauxwell filed a complaint seeking
to quiet title by claim of adverse possession in certain proper-
ties after Ryan R. Hanzlick and his wife acquired tax deeds to
the same.47 We held that the district court erred by not dismiss-
ing the complaint for lack of jurisdiction due to Hauxwell’s
failure to establish standing, under § 77-1844.48 Robin cites
our conclusion that “Hauxwell did not plead or demonstrate
through evidence that payment of the past due taxes was ever
made or tendered to the treasurer or to the Hanzlicks.”49
Directly preceding this conclusion, however, we cited our
longstanding proposition of law that to satisfy the tax payment
requirement of § 77-1844, “the party needs only to show the
tender of payment of taxes to the treasurer.”50 In concluding
that there was also no payment or tender to the Hanzlicks, we
provided no support or explanation for the implication that
doing so would satisfy the standing requirements of § 77-1844
and expanding our precedent.
46
Hauxwell, supra note 24.
47
Id.
48
Id.
49
See id. at 7, 863 N.W.2d at 802.
50
Id. at 6, 863 N.W.2d at 802 (emphasis supplied).
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When we adopted this longstanding proposition, it was
based on our reasoning that when a plaintiff has tendered pay-
ment to the county treasurer and such payment is refused, a
“plaintiff could not do more” under the tax certificate statutes
to satisfy the standing requirement.51 This reasoning itself nec-
essarily rejects an argument that making payment to the tax
deed holder would be an acceptable alternative.
[21] Our statement in Hauxwell was also not supported by
our tax certificate statutes.52 Components of a series or collec-
tion 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.53 Sections
77-1844 and 77-1843 both provide statutory prerequisites for
property owners to recover their property after the issuance of
a tax deed.
While § 77-1844 does not specify whom the taxes due on
the property must be paid to, § 77-1843 requires the property
to have been redeemed pursuant to various statutory sec-
tions. Section 77-1843 explicitly references Neb. Rev. Stat.
§ 77-1701(1) (Reissue 2009), which provides in part: “The
county treasurer shall be ex officio county collector of all taxes
levied within the county.” As we mentioned above, redemption,
a term of art in § 77-1801 et seq., includes the payment of all
property taxes due.
[22] Thus, we hold that to satisfy the tax payment require-
ment in § 77-1844, a party must show the tender or payment
of taxes due to the county treasurer, and we disapprove of
Hauxwell 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.54
51
Howell v. Jordan, 94 Neb. 264, 266, 143 N.W. 217, 218 (1913).
52
Hauxwell, supra note 24.
53
In re Trust of Shire, 299 Neb. 25, 907 N.W.2d 263 (2018).
54
Hauxwell, supra note 24.
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2. Vandelay Substantially Complied
With Statutory Notice R equirements
Before A pplying for Tax Deed
Robin argues Vandelay’s tax deed is void because he pre-
sented sufficient evidence to overcome the statutory presump-
tion that the notice requirements were complied with before
Vandelay applied for the tax deed. Specifically, he argues that
Vandelay was not entitled to provide notice by publication
and that Vandelay did not comply with the statutory publica-
tion requirements.
[23] Section 77-1843 provides the statutory prerequisites
to defeating title “[i]n all controversies and suits involving
the title to real property claimed and held under and by virtue
of a deed made substantially by the treasurer in the manner
provided by sections 77-1831 to 77-1842 . . . .”55 We have
interpreted § 77-1843 to apply only to those tax deeds made
after substantial compliance with the aforementioned sec-
tions.56 Accordingly, we consider the validity of Vandelay’s
tax deed.
[24] 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.57 A tax deed
holder is entitled to receive a tax deed from the county treas­
urer only after it “serves or causes to be served a notice,” con-
taining specific information provided therein, at least 3 months
before applying for the tax deed.58 Specifically, § 77-1842
provides that a tax deed is presumptive evidence that “the
notice had been served or due publication made as required
in sections 77-1831 to 77-1835 before the time of redemption
had expired.” The presumption is not conclusive and may be
55
See Ottaco Acceptance, Inc., supra note 13.
56
Id.
57
SID No. 424 v. Tristar Mgmt., 288 Neb. 425, 850 N.W.2d 745 (2014). See
§ 77-1842.
58
§ 77-1831.
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rebutted, but the burden is upon the party attacking the validity
of such a deed to show by competent evidence some jurisdic-
tional defect voiding the deed.59
As to proper notice under the tax deed method, § 77-1832,
in relevant part, provides: “Service of the notice provided by
section 77-1831 shall be made by certified mail, return receipt
requested, upon the person in whose name the title to the real
property appears of record to the address where the property
tax statement was mailed . . . .”
This section, however, has been the subject of signifi-
cant revision since the turn of the century. The 2009 version
resulted from a 2003 amendment to the following language:
“Service of the notice provided by section 77-1831 shall be
made on every person in actual possession or occupancy of the
real property [and] upon the person in whose name the title to
the real property appears of record . . . .”60
Further, the language of § 77-1832 (Supp. 2017), currently
in effect, provides:
(1) Service of the notice provided by section 77-1831
shall be made by:
(a) Personal, residence, certified mail, or designated
delivery service as described in section 25-505.01 upon
every person in actual possession or occupancy of the
real property who qualifies as an owner-occupant under
section 77-1824.01; or
(b) Certified mail service as described in section
25-505.01 upon:
(i) The person in whose name the title to the real prop-
erty appears of record who does not qualify as an owner-
occupant under section 77-1824.01. The notice shall be
sent to the name and address to which the property tax
statement was mailed[.]
59
Ottaco Acceptance, Inc. v. Huntzinger, 268 Neb. 258, 682 N.W.2d 232
(2004). See § 77-1842.
60
§ 77-1832 (Reissue 1996). See 2003 Neb. Laws, L.B. 319.
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[25] In summary, direct service under the recent versions of
§ 77-1832 was provided for as follows: Before 2003, service
was required both (1) on every person in actual possession
or occupancy of the real property and (2) upon the person in
whose name the title to the real property appears of record,
and service was not limited to certified mail; under § 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; for tax certificates issued in 2018, service must be
(1) made upon every owner-occupant by the methods autho-
rized in Neb. Rev. Stat. § 25-505.01 (Reissue 2016) and (2)
provided to the owner of record, if not an owner-occupant, at
the address where the property tax statement was mailed by
certified mail.
Besides § 77-1832, the only other section that provides for
effectuating the service required by § 77-1831 is § 77-1834.
Section 77-1834, in relevant part, has consistently provided:
If the person in whose name the title to the real prop-
erty appears of record in the office of the register of
deeds in the county . . . cannot, upon diligent inquiry,
be found, then such purchaser or his or her assignee
shall publish the notice in some newspaper published
in the county and having a general circulation in the
county . . . .
There is no dispute that Vandelay sent notice to Gladys by
certified mail, return receipt requested, and that it was returned
as “‘unclaimed’” after three attempted deliveries.61 Because
Vandelay was unable to serve Gladys in compliance with
§ 77-1832, it could comply with § 77-1831 only by causing
Gladys to be served under § 77-1834. Accordingly, we consider
Robin’s arguments that Vandelay was not entitled to provide
service under § 77-1834 and that the service it did provide
was deficient.
61
Wisner v. Vandelay Investments, supra note 16, 2017 WL 2399492 at *4.
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(a) Vandelay Was Entitled to Serve Gladys
by Publication After It Was Unable to
Serve Her Notice by Certified Mail
Robin argues we should interpret “found” consistently with
its plain meaning of a person’s whereabouts’ being actually
known, as the Court of Appeals held. Under this interpreta-
tion, he argues that Vandelay could not serve Gladys by pub-
lication because it actually knew her address and that instead,
its only course of action was to resend notice by certified mail
or initiate foreclosure proceedings. Robin also contends pub-
lication was not available because Vandelay did not conduct
a “diligent inquiry” by publishing notice after sending only
one certified mailing and taking no other actions to provide
Gladys notice.62
Vandelay contends that because § 77-1801 et seq. allows
service only by certified mail and publication, we should con-
strue the statutes harmoniously by interpreting someone to be
“‘found’” only when he or she has been “[actually] ‘served’”
by certified mail, not when his or her address of record simply
becomes “‘known.’” It also argues that its efforts were diligent
because it sent the notice of publication to Gladys by first-class
mail, which was not returned.
(i) “Diligent Inquiry” Under § 77-1834
Requires Party to Request Address Where
Property Tax Statements Are Sent
From County Treasurer
We begin by considering the meaning of “diligent inquiry,”
under § 77-1834. This phrase is not defined in the statutes, and
we have not previously interpreted its meaning. Robin argues
we should interpret the phrase consistently with “reasonable
diligence,” from Neb. Rev. Stat. § 25-517.02 (Reissue 2016).
Section 25-517.02 provides: “Upon motion and showing
by affidavit that service cannot be made with reasonable dili-
gence by any other method provided by statute, the court may
62
Brief for appellant on petition for further review at 20.
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permit service to be made . . . (2) by publication . . . .” In
In re Interest of A.W.,63 we described a “reasonably diligent”
search as
not requir[ing] the use of all possible or conceivable
means of discovery, but [a]s such an inquiry as a reason-
ably prudent person would make in view of the circum-
stances [that] must extend to those places where informa-
tion is likely to be obtained and to those persons who, in
the ordinary course of events, would be likely to receive
news of or from the absent person.
While the phrases are not identical, the context of both
concerns the effort required to determine the location of an
individual for the purpose of providing service. As mentioned
above, components of a series or collection of statutes per-
taining 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.64 Based on the similar
subject matter, an argument could be made to interpret these
phrases to have a similar meaning. However, these phrases
are not components of a series of statutes. Instead, the context
of the statutes for service under § 77-1831 is quite unique in
its limitation.
As mentioned above, § 77-1832 (Reissue 2009) authorizes a
tax certificate holder to serve the owner of record only at the
address where the property tax statement was mailed. Unlike
the pre-2003 amended statute—which allowed for an owner
of record to be served by mail at any address—the limitation
on service to the address where the property tax statement was
mailed remains in effect under the current statutory scheme. As
a result, a party’s efforts to discover the actual location of an
owner of record are fruitless because the tax certificate holder
has no authority to serve him or her at that location.
63
In Interest of A.W., 224 Neb. 764, 766, 401 N.W.2d 477, 479 (1987).
64
In re Trust of Shire, supra note 53.
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[26,27] Nevertheless, 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.65
In this case, the Legislature has rendered the phrase “diligent
inquiry” largely superfluous through its 2003 amendment to
§ 77-1834, but we give the phrase effect by acknowledging that
it is still incumbent upon 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. Vandelay took this action, and the statutes do not
require it to do any more.
The parties’ arguments surrounding “diligent inquiry,” how-
ever, do not concern the efforts required under § 77-1834 to
locate the address of the owner of record. It is undisputed
that Vandelay did, in fact, discover Gladys’ actual address.
Instead, the parties’ argument, essentially, requests us to read
all of the prerequisites to notice by publication, contained in
§ 25-517.02, into § 77-1834, under the guise of interpreting
“diligent inquiry.” This we cannot do. A court will not read
into a statute a meaning that is not there.66 While subjecting a
tax certificate holder to the same prerequisites for service by
publication as are required in § 25-517.02 might be a prudent
decision for the Legislature to make, it is solely within the
Legislature’s purview to do so. Therefore, the parties’ argu-
ments concerning whether Vandelay took sufficient steps above
those required in § 77-1832 are irrelevant.
(ii) Owner of Record Is “Found” Only if
He or She Is “Able to Be Served,”
Under § 77-1834
We next consider whether Vandelay was entitled to serve
Gladys notice by publication after it was unable to serve her by
certified mail, despite having actual knowledge of her location.
65
Woodmen of the World v. Nebraska Dept. of Rev., 299 Neb. 43, 907
N.W.2d 1 (2018).
66
State v. Gill, 297 Neb. 852, 901 N.W.2d 679 (2017).
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Whether Vandelay was able to serve Gladys by publication
depends on our interpretation of the term “found.”
[28-30] 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.67 However, “‘[a]
statute can . . . be considered ambiguous when a particular
interpretation from the face of a statute could lead to an anom-
alous, unusual or absurd result.’”68 For “‘[i]t is impermissible
to follow a literal reading that engenders absurd consequences
where there is an alternative interpretation that reasonably
effects the statute’s purpose.’”69
[31] 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.70 As men-
tioned above, 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.71
The definition of “found,” as the past tense of “find,” is “I.
To come upon by chance or in the course of events. . . . II. To
discover or attain by search or effort.”72 Consistently with this
plain meaning, the Court of Appeals interpreted “found” to
mean Vandelay actually knew Gladys’ address. The implication
of ascribing this plain meaning to the term, however, would to a
67
Becher v. Becher, 299 Neb. 206, 908 N.W.2d 12 (2018).
68
U.S. v. E.T.H., 833 F.3d 931, 938 (8th Cir. 2016), quoting Breedlove
v. Earthgrains Baking Companies, Inc., 140 F.3d 797 (8th Cir. 1998).
Accord, e.g., Dean v. State, 288 Neb. 530, 849 N.W.2d 138 (2014).
69
U.S. v. E.T.H., supra note 68, 833 F.3d at 938, quoting Ashley, Drew &
Northern Ry. v. United Transp. U., 625 F.2d 1357 (8th Cir. 1980).
70
Anthony, Inc. v. City of Omaha, 283 Neb. 868, 813 N.W.2d 467 (2012).
71
In re Trust of Shire, supra note 53.
72
“Find,” Oxford English Dictionary Online, http://www.oed.com/view/
Entry/70348 (last visited Aug. 3, 2018).
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large extent obviate the utility of the tax deed statutes. It would,
based on the narrow service procedure in § 77-1832, preclude
the holder of a tax certificate from obtaining a tax deed if an
owner of record either refuses to accept a certified mailing of
the notice to the address where the property tax statement was
sent or lives at any other address and can be found there.
[32] We have stated that the overall objective of the cer-
tificate method for delinquent taxes is the recovery of unpaid
taxes on real property.73 As explained above, the Legislature
created two separate methods for a tax certificate holder to
elect to pursue to recover the taxes he or she paid on behalf of
the deficient owner. Neither of these policies supports a con-
struction of the tax deed statutes rewarding an owner, already
deficient in paying taxes, by allowing him or her to force the
initiation of judicial foreclosure proceedings simply by avoid-
ing the notice, which the tax deed method was designed to
provide the owner regarding his or her rights.74 Therefore, we
reject the plain meaning of “found.”
[33] Vandelay, contrariwise, argues that we should interpret
“found” to mean “‘able to be served.’”75 While this defini-
tion is not supported by any plain or ordinary meaning of the
word, it does find support in the context of civil procedure as
a legal term of art. “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.”76 We have ascribed the
term of art meaning to statutory terms when necessitated by the
statute’s context.77
73
SID No. 424, supra note 57.
74
Id.
75
Supplemental brief for appellee on petition for further review at 27.
76
82 C.J.S. Statutes § 418 at 537 (2009).
77
In re Estate of Young, No. A-96-423, 1997 WL 426191 (Neb. App. July
1, 1997) (not designated for permanent publication), citing In re Estate of
Hannan, 246 Neb. 828, 523 N.W.2d 672 (1994). See, also, e.g., Spady v.
Spady, 284 Neb. 885, 824 N.W.2d 366 (2012); ATS Mobile Telephone, Inc.
v. General Communications Co., Inc., 204 Neb. 141, 282 N.W.2d 16 (1979).
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In fact, we long ascribed such a meaning to the word
“found” in Neb. Rev. Stat. § 25-408 (Reissue 1985), which
has since been repealed.78 Section 25-408, in relevant part,
provided: “An action . . . against a nonresident of this state or
a foreign corporation may be brought in any county . . . where
said defendant may be found . . . .” Regarding foreign corpora-
tions, we had held that “[a] defendant ‘may be found’ in any
county in which proper service can be had upon its agent.”79
Further, in other states, courts have also determined “found”
to mean “‘found for legal service’” in the context of civil
procedure.80 These states’ venue statutes state the following:
“When the defendant is a resident of the state, either in the
county within which the defendant resides, or in the county
within which the plaintiff resides, and the defendant may be
found.”81 The Nevada Supreme Court interpreted “found,” in
this context, as follows:
It is clear from the statute that the word “found” is used
in contradistinction to the word “reside.” The action then
may be instituted by a resident of the state in a court of
a county, regardless of the residence of the defendant,
if it is alleged that he can be found within the county
where suit is instituted and is actually served with proc­
ess therein.82
This term of art definition of “found” also provides a
harmonious construction to the tax deed statutes by giving
effect to the dichotomy created by §§ 77-1832 and 77-1834
to accomplish the service requirement of § 77-1831. Under
this construction, a tax certificate holder must attempt to serve
78
See 1986 Neb. Laws, L.B. 529, § 58.
79
Mittelstadt v. Rouzer, 213 Neb. 178, 181, 328 N.W.2d 467, 469 (1982),
quoting Juckett v. Brennaman, 99 Neb. 755, 157 N.W. 925 (1916).
80
Shields v. Shields, 115 Mont. 146, 155, 139 P.2d 528, 530 (1943). Accord
State ex rel. Ford Motor Co. v. Manners, 161 S.W.3d 373 (Mo. 2005).
81
See, e.g., Mo. Ann. Stat. § 508.010(1) (West Cum. Supp. 2018). Accord
Miss. Code Ann. § 93-5-11 (2013).
82
Tiedemann v. Tiedemann, 36 Nev. 494, 500-501, 137 P. 824, 826 (1913).
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the owner of record under the requirements of § 77-1832,
but, if such service is impossible or unsuccessful, then the tax
certificate holder may provide service by publication. Such
an interpretation gives effect to the statutory requirements
while retaining the overall viability of the tax deed statutes as
a whole.
[34,35] Therefore, we hold that the word “found” in
§ 77-1834 means “able to be served.” Accordingly, we hold
that § 77-1834 authorizes a tax certificate holder to provide
service by publication to an owner of record who was not able
to be served by certified mail at the address where the prop-
erty tax statement was mailed, upon proof of compliance with
§ 77-1832 if the owner, in fact, lives at such address.
In this case, Vandelay obtained the address where Gladys
received the property tax statements for the property. It then
sent notice by certified mail, return receipt requested, which
notice was returned as “unclaimed” after three failed attempts
at delivery. Vandelay submitted this into evidence along with
an affidavit of its efforts to comply with § 77-1832, as
required by § 77-1833 (Cum. Supp. 2012). This constituted
complete compliance with the requirements of § 77-1832,
and because Gladys was not able to be served in this manner,
Vandelay appropriately proceeded with service by publica-
tion. Therefore, we find the Court of Appeals’ determination
that Vandelay was not entitled to serve Gladys by publica-
tion erroneous.
[36] Before we reverse the Court of Appeals’ decision,
however, we consider Robin’s alternative argument before the
Court of Appeals that the tax deed was void because Vandelay
failed to comply with the publication requirements, which the
Court of Appeals did not reach. Upon further review from
a judgment of the 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.83
83
In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d 37 (2015).
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(b) Vandelay Complied With Publication
Requirements of § 77-1834
Robin argues Vandelay’s proof of publication did not com-
ply with § 77-1835 because it did not say the Courier-Times
newspaper was in general circulation in the county and because
he offered evidence the Courier-Times was not, in fact, in cir-
culation throughout Lincoln County. Further, Robin contends
Vandelay did not comply with § 77-1834 because there was
another Lincoln County newspaper Gladys was more likely
to see.
As mentioned above, § 77-1834, in relevant part, provides
that “the purchaser or his or her assignee shall publish the
notice in some newspaper published in the county and having a
general circulation in the county.” Section 77-1835, in relevant
part, states:
Proof of publication shall be made by filing in the county
treasurer’s office the affidavit of the publisher, manager,
or other employee of such newspaper, that to his or her
personal knowledge, the notice was published for the time
and in the manner provided in this section, setting out
a copy of the notice and the date upon which the same
was published.
[37] There is no requirement in the preceding sections
that specific language must appear in a proof of publica-
tion. Instead, the proof of publication needs to state only that
notice was published in the manner provided in § 77-1834.
In addition, Neb. Rev. Stat. § 25-523 (Reissue 2016) defines
a “legal newspaper” for the publication of legal and other
official notice as one which has a “bona fide circulation of at
least three hundred paid subscriptions weekly, and shall have
been published within the county for fifty-two successive
weeks prior to the publication of such notice, and be printed,
either in whole or in part, in an office maintained at the place
of publication.”
The proof of publication sufficiently stated that the Courier-
Times is a legal newspaper having a bona fide circulation of at
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least 300 paid weekly subscriptions and that it had been pub-
lished within the county for 52 consecutive weeks prior to the
publication of such notice.
[38] Robin also failed to produce sufficient evidence the
Courier-Times was not, in fact, in general circulation in Lincoln
County. In the absence of a sufficient showing to the contrary,
the affidavit of the publisher that a newspaper was one of gen-
eral circulation in the county must be held sufficient to estab-
lish the fact.84
[39] Robin submitted evidence that the Courier-Times had
only 1,300 weekly subscriptions among three villages within
Lincoln County. However, absent anything to the contrary,
statutory language is to be given its plain meaning, and a court
will not look beyond the statute or interpret it when the mean-
ing of its words is plain, direct, and unambiguous.85 The plain
meaning of the word “in,” in § 77-1834, shows that the news-
paper only needed to be generally circulated within Lincoln
County, not throughout the entire county, as Robin argues.
Robin’s evidence does not constitute sufficient evidence that
the Courier-Times was not a legal newspaper in general circu-
lation in Lincoln County.
Robin also produced evidence another newspaper published
in Lincoln County had greater circulation throughout the
county and, specifically, in the ZIP code where Gladys and the
property were located. He argues that Vandelay did not satisfy
the publication requirement by not publishing the notice in
this newspaper, by reading some type of good faith require-
ment into § 77-1834. However, § 77-1834 does not require
publication in the newspaper of greatest circulation in the
county, and we will not impose such a requirement. As men-
tioned above, a court will not read into a statute a meaning
that is not there.86
84
See Bourke v. Somers, 3 Neb. (Unoff.) 761, 92 N.W. 990 (1902).
85
In re Trust of Shire, supra note 53.
86
State v. Gill, supra note 66.
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Nevertheless, Robin directs us to State, ex rel. Elliott, v.
Holliday,87 where in 1892, we stated: “Legal advertisements
should not be inserted in an obscure paper where the prob-
abilities are that they will be seen by but few, where there is a
paper of general circulation in the county, because the object of
the law will be in part at least defeated.” In Holliday, we were
considering a sheriff’s refusal to publish mortgage foreclosure
sale notices in any newspaper except the one published by his
political party, which newspaper was alleged to have been “‘of
such small circulation as in effect to utterly defeat the object
of the law.’”88 We do not foreclose the possibility that there is
some threshold requirement for the circulation of a newspaper
to satisfy the requirements of § 77-1834, but Holliday is inap-
plicable here, where, as we stated above, Robin has not pre-
sented sufficient evidence to overcome the statutory presump-
tion that § 77-1834 was complied with.
Because we conclude Robin did not overcome the presump-
tion Vandelay complied with the statutory notice requirements
to show Vandelay’s tax deed is void, we must reverse the deci-
sion of the Court of Appeals.
[40] Upon reversing a decision of the Court of Appeals,
we may consider, as we deem appropriate, some or all of the
assignments of error the Court of Appeals did not reach.89
Because the Court of Appeals determined that Vandelay’s tax
deed was void, it did not consider whether Gladys had a
mental disorder entitling Robin to redeem the property under
the expanded statutory period or whether equity requires the
protection of Robin’s interests. The district court fully decided
these issues, and the meaning of “mental disorder,” under
§ 77-1827, is a matter of first impression. Thus, we elect to
consider these assignments of error.
87
State, ex rel. Elliott, v. Holliday, 35 Neb. 327, 333, 53 N.W. 142, 144
(1892).
88
Id. at 331, 53 N.W. at 143.
89
Burns v. Burns, 293 Neb. 633, 879 N.W.2d 375 (2016).
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3. Robin Failed to Prove He Was Entitled to
Extended R edemption Period in § 77-1827
Robin argues that he was entitled to redeem the property
because Gladys suffered from a mental disorder that extended
the statutory redemption period and because Vandelay admitted
that Robin had tendered redemption to the county treasurer. He
argues that the district court erred in not finding Gladys had
a mental disorder by relying on Vandelay’s expert, who never
examined Gladys and only selectively reviewed her medical
records, over her long-term physician.
Vandelay argues that the evidence was insufficient to prove
Gladys had a mental disorder affecting her ability to make
legal decisions and that we should defer to the lower court’s
factual finding that Vandelay’s expert was more credible than
Gladys’ physician, whose testimony was not supported by his
own medical records.
[41] In order to defeat a tax deed, a party must show that
it satisfied the conditions precedent in § 77-1843. One of
the options to satisfy § 77-1843 includes proving that (1)
the property has been redeemed from the sale and (2) such
redemption was had or made for the use and benefit of persons
having the right of redemption under the laws of this state.
As discussed above, Vandelay admitted that Robin tendered
redemption to the county treasurer, which is sufficient to sat-
isfy that condition.
Though we are aware that in 2013, the Legislature revised
§ 77-1827 to replace the term “mental retardation” with the
term “intellectual disability,” for purposes of this matter we
quote from the version of the statute in place during the rel-
evant period of this controversy. The 2009 version states: “The
real property of persons with mental retardation or a mental
disorder so sold, or any interest they may have in real property
sold for taxes, may be redeemed at any time within five years
after such sale.” 90 There is no contention that Gladys suffered
90
§ 77-1827 (Reissue 2009).
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from the first condition, so we consider only whether she suf-
fered from the second condition.
[42,43] The language of the statute indicates that the
extended redemption period for a mental disorder exists if the
owner had a mental disorder at the time of the property’s sale.
Contrariwise, interpreting the statute to extend the redemp-
tion period for an individual who only later develops a men-
tal disorder within the 5-year period provided therein would
be absurd because such an individual could not reobtain the
right to redeem the property after a tax deed had been val-
idly issued. 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.91 Accordingly, we
restrict our analysis to whether Gladys had a mental disorder
in March 2011.
At trial, each party called an expert witness concerning
Gladys’ mental state. The witnesses agreed that a mental disor-
der is, as characterized by Vandelay’s expert, “marked primar-
ily by sufficient disorganization of personality, mind and emo-
tions to seriously impair the normal psychological functioning
of the individual.”
Robin called Dr. Ronald Asher, who provided Gladys’ medi-
cal care beginning in at least 2006. He stated that an MRI
record in his 2006 records indicated Gladys had vascular dis-
ease in her brain, which causes small strokes. He described
Gladys’ mental functioning as starting at a normal level in
2006 but slowly deteriorating until the time of her death,
when she was mostly bedridden. Asher explained that Gladys’
deterioration was a “step-wise progression,” where she would
suffer a small stroke impairing her mental status for 7 to 10
days before she recovered to a level slightly worse than before
the stroke.
Asher opined Gladys had a mental disorder and dementia
from at least 2009 until her death, but he could not deter-
mine exactly when she developed the mental disorder. He
91
Burns v. Burns, 296 Neb. 184, 892 N.W.2d 135 (2017).
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explained she was unable to understand complicated issues,
make appropriate judgments, or manage financial matters—
beyond writing checks and simple cash management. While
Asher never performed any psychological testing or prescribed
Gladys dementia medication, he explained she had never suf-
fered any behavioral issues warranting intervention. Finally, he
acknowledged his notes from June 2012, “I thought [her] men-
tal status was good,” and May 2015, “mental status reassur­
ing,” but explained the notes were relative to her status during
that period.
Robin and one of his sisters provided anecdotal testimony
about Gladys’ false memories and lack of reasoning, which
were consistent with the symptoms of a mental disorder as
described by the experts. Robin also testified that Gladys’
mental condition gradually declined but that the most sig-
nificant change occurred after she was hospitalized for a fall in
December 2013.
Regarding Gladys’ ability to handle her affairs, Robin and
his sister stated that Gladys tended to keep all documents
and mail she received and that they found records from doc-
tor appointments, letters from Social Security, various bills,
junk mail, and a handicapped parking pass Gladys claimed to
have thrown away, but no property tax statements. Robin also
stated Gladys asked him about her bills frequently after 2009 to
make sure they were being paid. Robin testified he confirmed
with the retirement community staff that Gladys continued to
receive her mail throughout her time living there.
Dr. John Goldner, a neurologist, testified for Vandelay
after conducting a comprehensive review of Gladys’ medical
records. Specifically, he relied on Asher’s notes, the absence of
psychological testing and prescriptions treating dementia, and
the daily notes from the retirement community—describing
Gladys as alert, orientated, and able to make her needs known
and make her own decisions, through 2013. Goldner testified
that Asher’s notes indicated that in April 2013, Gladys suffered
from decreased memory, and that then in December 2013,
Gladys moved from a residential unit to the assisted living
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unit at the retirement community because she required a higher
level of care. He testified that at Gladys’ age, it was possible
that her functioning could be deficient enough to be consid-
ered a mental disorder on certain days, but that she appeared
to generally be able to function within normal limits for her
advanced age, which is not de facto a mental disorder. He tes-
tified Gladys’ functioning could not be classified as a mental
disorder before mid-2014, at which point her mental capacity
was inconclusive.
The court determined that Asher’s records did not support
his conclusions that Gladys had a mental disorder. It con-
cluded Robin failed to prove Gladys had a mental disorder,
relying on Goldner’s testimony that Gladys did not suffer from
a mental disorder any time before mid-2014, the evidence
that any mental decline she was experiencing was not out of
line with other individuals her age, and the fact that she was
never tested for a mental condition or placed on medication
for dementia.
We have not previously interpreted the term “mental disor-
der” in the context of § 77-1827 (Cum. Supp. 2016). We have,
however, interpreted that same phrase in the context of statu-
tory limitations on certain actions. Neb. Rev. Stat. § 25-213
(Reissue 2016), in relevant part, provides:
[I]f a person entitled to bring any action [under listed
statutes] for the recovery of the title or possession of
lands, tenements, or hereditaments, or for the foreclosure
of mortgages thereon, is, at the time the cause of action
accrued . . . a person with a mental disorder . . . every
such person shall be entitled to bring such action within
the respective times . . . after such disability is removed.
[44] In Maycock v. Hoody,92 we adopted the definition of
“mental disorder” employed by the Court of Appeals, reason-
ing it was consistent with our interpretation of a previous ver-
sion of the statute.93 We stated:
92
Maycock v. Hoody, 281 Neb. 767, 799 N.W.2d 322 (2011).
93
See Sacchi v. Blodig, 215 Neb. 817, 341 N.W.2d 326 (1983).
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[A] person with a mental disorder under § 25-213 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 § 25-213
is “an incapacity which disqualifies one from acting for
the protection of one’s rights.”94
Because both § 77-1827 and § 25-213 relate to extending
the time required to exercise a legal right for an individual suf-
fering from a mental disorder, we interpret the meaning of the
term “mental disorder” consistently among them.
While we review factual issues de novo on the record, we
give deference to the fact that the trial court observed the tes-
timony of the experts and Wisner family members. The court
determined that Goldner’s testimony was more credible than
Asher’s and the Wisners’ because of the contradiction with
Asher’s records and lack of anyone requesting psychological
testing for Gladys.
The definition of a mental disorder provided by the experts
appears to be broader than the standard required by the stat-
ute. Accordingly, Goldner’s opinion that Gladys did not suffer
from any mental disorder before mid-2014 strongly supports
not finding Gladys to have had a mental disorder in March
2011, while Asher’s contrary opinion did not contain a precise
conclusion regarding her ability to understand and protect her
legal rights.
Both Asher and Robin described Gladys’ mental condi-
tion as a slow decline. Asher could not pinpoint when Gladys
developed a mental disorder but concluded it was in at least
2009 despite a general consensus that her greatest decline in
functioning occurred in December 2013. While Asher stated
that Gladys had a decreased ability to make judgments and
understand complex issues since 2009, Robin stated that she
remained vigilant regarding her financial obligations, and
94
Maycock, supra note 92, 281 Neb. at 776, 799 N.W.2d at 329, quoting
Vergara v. Lopez-Vasquez, 1 Neb. Ct. App. 1141, 510 N.W.2d 550 (1993).
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the June 2011 newspaper article indicated that typically, she
was still functioning near her normal capacity—engaging in
weekly card games with friends and reading. Finally, Asher’s
note from June 2012 does not provide any support for his
conclusion that she had a mental disorder, even if it was only
describing her relative status.
Based on the district court’s credibility determination and
our independent review of the evidence, we conclude Robin
failed to prove Gladys suffered from a mental disorder in
March 2011. Therefore, her right to redeem the property
expired when the county treasurer delivered the tax deed
to Vandelay.
4. Equities of Case Do Not Favor Robin
Robin argues the equities of this situation warrant this
court’s permitting him to redeem the property, even if the law
does not. He argues the undisputed evidence is that Gladys
was a 95-year-old widow in a retirement community with no
local family and at least some diminished mental capacity.
Conversely, he argues Vandelay chose to pursue the less ardu-
ous process for a tax deed and did only the bare minimum
required by the tax deed statutes, in bad faith to deprive Gladys
of her property at a significant windfall.
The parties dispute whether we may provide an equitable
remedy at all when the situation is governed by a comprehen-
sive, rigid statutory structure. We need not decide this issue,
because even assuming, without deciding, that we could craft
some type of relief for Robin, his characterization of the equi-
ties of the situation strongly distorts the reality of this case.
[45] 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.95 But “‘equity follows the
law to the extent of obeying it and conforming to its gen-
eral rules and policies whether contained in common law or
95
Floral Lawns Memorial Gardens Assn. v. Becker, 284 Neb. 532, 822
N.W.2d 692 (2012).
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statute.’” 96 This maxim is strictly applicable whenever the
rights of the parties are clearly defined and established by
law.97 Also, equitable remedies are generally not available
where there exists an adequate remedy at law.98
When Roger died in 2009, Robin took responsibility over
managing Gladys’ affairs. He passed this responsibility to
the trust department of a bank but, apparently, overlooked
the property taxes due on the property. Further, his own tes-
timony provided that he did not monitor Gladys’ finances,
despite her persistent concern about her bills’ being paid.
Additionally, while Gladys was stated to have retained all
of her mail, even junk mail, she apparently disposed of her
repeated notices by Lincoln County and Vandelay regarding
her property tax deficiency.
Steps could have been taken to ensure that Gladys’ affairs
were being addressed. When Gladys moved to the retirement
community in 2009, her address of record was changed with
the relevant agencies. Robin, as the holder of Gladys’ power of
attorney, could have directed that all of Gladys’ mail be sent
to him. He could have had the lease on the property recorded
with the register of deeds to allow additional notices to be
sent to the tenant. He could have paid the real estate taxes or
authorized the trust department to pay the real estate taxes. He
could have sought to have her mental capacity tested, and if
Gladys was found to be impaired by reason of disability, he
could have sought a conservatorship for her. However, Robin
failed to take any one of the steps to ensure the real estate
taxes were paid.
Despite the harsh result in this matter, the Legislature has
established strict rules for the payment of real estate taxes and
ramifications for the failure to pay those taxes. Vandelay com-
plied with those statutory requirements to obtain a tax deed on
validly purchased tax certificates. Despite Robin’s arguments
96
Jeffrey B. v. Amy L., 283 Neb. 940, 949, 814 N.W.2d 737, 745 (2012).
97
Id.
98
Jeffrey B. v. Amy L., supra note 96.
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that it did the bare minimum required, Vandelay, in fact,
researched where to find Gladys; sent Gladys, by certified mail
to her correct address, notice that an application for a tax deed
would be made; published notice of the application in a legal
newspaper of general circulation in Lincoln County; and sent
the notice of publication to Gladys by first-class mail. The last
step of mailing the notice of the publication by first-class mail
was not statutorily required and was made by Vandelay out of
an abundance of caution to ensure Gladys was not deprived of
the due process rights in her property.
Hence, the equities of this situation do not favor Robin, and
this assignment of error is without merit.
V. CONCLUSION
Despite Robin’s standing to challenge Vandelay’s tax deed,
we conclude Robin failed to present sufficient evidence to
either overcome the presumption Vandelay provided Gladys
with sufficient service, as required to obtain a valid tax deed,
or prove Gladys suffered from a mental disorder at the time
of her property’s tax sale, extending her statutory redemption
period. In addition, the tax certificate statutes enacted by the
Legislature establish a specific process upon the failure to
pay real estate taxes which does not take into consideration
the amount of the delinquent tax compared to the value of
the property. As a result, we determine the record in this case
does not support providing Robin with a remedy he was not
entitled to under the statutes. Therefore, we reverse the deci-
sion of the Court of Appeals and remand the cause with direc-
tions that the Court of Appeals affirm the judgment of the
district court.
R eversed and remanded with directions.
Wright and K elch, JJ., not participating.
Cassel, J., dissenting in part.
This court’s admittedly “harsh” result flows from the district
court’s single failure, amidst an otherwise thorough and cor-
rect analysis, to see the forest for the trees. The district court
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rejected Gladys’ estate’s attempt to redeem the property based
on an extended redemption period authorized where a taxpayer
suffers from a “mental disorder.”1 The ultimate question here
is not whether Vandelay is entitled to all of the taxes, fees,
and costs that it paid, together with all of the interest imposed
pursuant to a high statutory rate designed to encourage prompt
payment of real estate taxes. Rather, the question is whether,
despite a remedy expressly authorized by the Legislature’s
“strict rules” in anticipation of this situation, Vandelay should
reap a windfall at the expense of an extremely elderly tax-
payer lacking the capacity to take action to protect her rights.
Because I conclude that Gladys was entitled to the extended
redemption period and that equity demands its implementation,
I respectfully dissent.
In all respects but one, the district court rendered an exten-
sive, well-researched, and well-written judgment. On appeal,
the Court of Appeals concentrated on the complicated tax
deed method statutes and did not reach the essential issue. On
further review, my colleagues have almost everything right. I
agree with this court’s conclusions that Robin had standing to
challenge the tax deed and that Vandelay substantially com-
plied with the statutory notice requirements for a tax deed, and
with all of this court’s reasoning leading to those conclusions.
The court’s analysis regarding those matters is spot on. Only
where the court turns to the statutory right of redemption do I
part its company.
This court acknowledges that both parties assert claims
for quiet title, which sound in equity. As this court’s opinion
admits, equity strives to do justice determined on a case-by-
case basis according to concepts of justice and fairness. This
court recites the correct standard of review—trying factual
questions de novo on the record and, as to questions of both
law and fact, reaching an independent conclusion from that of
the district court.
1
See Neb. Rev. Stat. § 77-1827 (Cum. Supp. 2016).
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Regarding whether Gladys suffered from a mental disorder
during the pertinent timeframe, I assert that this court should
give no weight to the district court’s observation of the two
medical experts. Our standard of review does not demand def-
erence to the district court in any respect. It is purely within
this court’s discretion. Here, none is due, for two reasons.
First, the testimony of Vandelay’s expert was presented by
deposition. As to that physician, the district court was in no
better position than this court to make credibility assessments.
Second, where I believe the district court went wrong had little
to do with its observations of Robin’s expert, who was Gladys’
treating physician.
I accept this court’s definition of “mental disorder,”2 which
the district court also employed. Thus, a mental disorder in this
context is “‘an incapacity which disqualifies one from acting
for the protection of one’s rights.’”3
Several facts set the stage, which is essential to an assess-
ment of Gladys’ capacity to protect her rights. She went to live
at a retirement community in 2009, the year she turned age
93. She moved there after the deaths of her husband in 2007
and her son Roger in 2009. The district court recognized that
“Gladys was generally unfamiliar with financial matters and
did not pay her own bills.” When she entered the facility, she
initially lived in the residential section. By the time the tax
sale certificates were sold in 2011, she was 94 years old. In
late 2013, at age 97, she suffered a number of falls. Because
she was no longer ambulatory, she was moved to the facility’s
assisted living section. By March 2014, as she approached the
age of 98, she was, as the district court found, suffering from
numerous chronic medical issues and having difficulty with
her memory, particularly in recalling names, and with compli-
cated tasks.
2
§ 77-1827.
3
Maycock v. Hoody, 281 Neb. 767, 776, 799 N.W.2d 322, 329 (2011).
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Both the district court and this court relied on medical
records kept for a significantly different purpose—to guide
her caregivers at the facility. Her caregivers were not record-
ing assessments of her understanding and ability to protect
her rights in financial matters. They were concerned with her
day-to-day well-being. Thus, it is no surprise that the records
showed that “she was having no behavioral issues, was kind
and easy to get along with, was oriented to time, person and
place, was alert and cooperative, was capable of performing
simple tasks, and displayed a fairly consistent pattern of nor-
mal intellectual behavior.” Vandelay’s expert relied solely on
these medical records. He never met or observed Gladys. His
testimony provides no significant insight into Gladys’ capacity
to protect her rights.
In contrast, Gladys’ longtime physician testified to per-
sonal observations and conclusions, over an extended period,
directly bearing on Gladys’ incapacity which disqualified her
from acting for the protection of her rights. He observed in
2006 that she had episodes of confusion and disorientation.
Those were typically associated with findings suggesting small
strokes—where imaging studies showed evidence of “white
matter changes,” that is, “ischemic injury.”
When Gladys moved to the facility in 2009, her doctor
observed that she was “not really able to make good judg-
ments.” He explained, “You could ask her questions and she
would give a good response, but if you asked detail, if you . . .
asked her to make judgments, she really wasn’t able to do that
very well.” He opined that “over time what you could see is
that she became less capable.”
From 2009 until the time of Gladys’ death, her doctor saw
her about every 60 days. Her doctor recalled a “fairly steady
but gradual deterioration in how well she did.” From his
observations, he described a “step-wise decrease in her . . .
functional capacity,” which he characterized as “more mental
than physical.” He described her ability to do “simple things,”
such as “describe that she needed to go to the bathroom, she
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was hungry, she was tired.” But he opined that her ability to
understand business or financial matters from 2009 on was
“very limited.” He opined that her ability to organize infor-
mation also was “very limited.” He opined that she suffered
from a “disorganization of the mind” from 2009 forward.
And he opined that her cognitive capacity from 2009 forward
showed that her “ability to deal with anything that was beyond
simple was not something that she could do.” With respect to
her reasoning and memory, he opined that “anything that was
. . . complicated would be beyond what she would be able to
manage.” Ultimately, Gladys’ doctor opined that from 2009 to
the time of her death, she suffered from a “mental disorder.”
He characterized it as “multi-infarct dementia,” that is, “mul-
tiple small strokes which . . . progressively knock out sections
of brain.”
The district court recognized that the question of whether
by 2014 Gladys suffered from a mental disorder in the statu-
tory sense was “more difficult.” It acknowledged that by the
spring of 2014, there “had been a decline in Gladys’ cognitive
and mental status.”
But then the district court missed the forest, stating that the
“evidence [did] not establish that her decline was out of the
normal range for a person of her age.” (Emphasis supplied.)
It defies reason and common sense to ignore the impact of
extremely advanced age on mental ability. And coupled with
the testimony of her doctor, supported by imaging showing
repeated small strokes over a period of years, I cannot agree
that Gladys had the capacity to act for the protection of her
own rights in the payment of real estate taxes.
Because I conclude that a de novo review supports the exis-
tence of a “mental disorder” as contemplated by § 77-1827
at the relevant time, I would modify the Court of Appeals’
decision and direct that court to reverse the judgment of the
district court and remand the cause with directions to quiet title
in Gladys’ estate upon payment by the estate into court of all
taxes, costs, and fees paid by Vandelay, together with statutory
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interest (14 percent per annum) to the time of payment into
court, to be disbursed to Vandelay in redemption of its tax deed
and the underlying tax sale certificate.
I reiterate that Vandelay is entitled to the full benefit of
the payments required for redemption. But Gladys (and now,
her estate) is no less entitled to justice. That was the exact
purpose of the statutory extended redemption period. And the
failure to implement that statute permits Vandelay to reap a
windfall that borders on the obscene. Because I believe that
the windfall is an unjust result contrary to statute, I respect-
fully dissent.