Wisner v. Vandelay Invs., L.L.C.
916 N.W.2d 698
| Neb. | 2018Background
- Gladys P. Wisner owned a 480-acre Lincoln County parcel; real estate taxes became delinquent and a tax-sale certificate was issued in 2011 and later assigned to Vandelay Investments, which applied for and received a county treasurer’s tax deed in Sept. 2014.
- Robin J. Wisner (power of attorney, later personal representative) attempted to redeem after issuance; Vandelay rejected the tender and quieted title in district court; the Court of Appeals reversed holding notice by certified mail was insufficient and the deed therefore void.
- Key factual disputes: (1) whether Robin had standing under Neb. Rev. Stat. § 77-1844 (i.e., whether taxes were tendered/paid to the county treasurer), (2) whether Vandelay complied with statutory notice and publication requirements before applying for the tax deed, and (3) whether Gladys had a “mental disorder” at the time of the tax sale entitling her to a 5‑year redemption period under § 77-1827.
- District court found Vandelay complied with notice and that Robin failed to prove Gladys had a mental disorder; Court of Appeals reversed on notice grounds; Nebraska Supreme Court granted further review.
- Nebraska Supreme Court held Robin had standing (Vandelay’s answer constituted a judicial admission that redemption was tendered to the treasurer), Vandelay substantially complied with notice/publication requirements (statutory scheme permits publication when owner cannot be served at the tax‑statement address), and Robin failed to prove Gladys had a qualifying mental disorder at the time of sale.
Issues
| Issue | Plaintiff's Argument (Wisner) | Defendant's Argument (Vandelay) | Held |
|---|---|---|---|
| Standing under § 77-1844 | Robin tendered payment (to treasurer or Vandelay); thus he may challenge the deed | Robin did not tender to the county treasurer; pleadings admission insufficient or ambiguous | Robin had standing: Vandelay’s answer admitted the treasurer declined to accept redemption, a judicial admission that Robin tendered to the treasurer (pleadings can supply required proof if admission is clear) |
| Proper notice before tax deed (§§ 77-1831–1835) | Certified mailing returned “unclaimed” and Vandelay knew Gladys’ address, so publication was improper | After diligent inquiry and failed certified attempts at tax‑statement address, publication is authorized | Vandelay substantially complied: “found” in § 77-1834 means “able to be served”; failure of certified mail to the tax‑statement address permits publication |
| Proof of publication sufficiency (§ 77-1835) | Courier‑Times lacked countywide circulation and proof was inadequate | Proof of publication and publisher affidavit met statutory requirement | Proof was sufficient; publisher affidavit and statutory definitions presumptively established legal newspaper circulation |
| Extended redemption for mental disorder (§ 77-1827) | Gladys suffered multi-infarct dementia by time of 2011 sale, extending redemption to 5 years | Medical records and expert review did not establish qualifying mental disorder in March 2011 | Robin failed to prove Gladys had a mental disorder at time of sale; district court credibility findings (treating physician vs. record-review expert) supported denial of extended redemption |
Key Cases Cited
- Hauxwell v. Henning, 291 Neb. 1 (Neb. 2015) (discussed standing under § 77-1844; Court clarifies tender must be to county treasurer, not deed holder)
- Ottaco Acceptance, Inc. v. Larkin, 273 Neb. 765 (Neb. 2007) (tax deed validity and substantial compliance with notice statutes)
- SID No. 424 v. Tristar Mgmt., 288 Neb. 425 (Neb. 2014) (tax deed is presumptive evidence that statutory procedures were followed)
- In re Trust of Shire, 299 Neb. 25 (Neb. 2019) (statutory construction principle: statutes in pari materia construed together)
- Maycock v. Hoody, 281 Neb. 767 (Neb. 2011) (definition of "mental disorder" as incapacity preventing protection of legal rights)