916 N.W.2d 698 (Neb. 2018), S-16-451, Wisner v. Vandelay Investments, L.L.C.

Docket Nº:S-16-451
Citation:916 N.W.2d 698, 300 Neb. 825
Opinion Judge:Funke, J.
Party Name:Robin J. WISNER, as Personal Representative of the Estate of Gladys P. Wisner, deceased, appellant, v. VANDELAY INVESTMENTS, L.L.C., a Nebraska limited liability company, et al., appellees.
Attorney:David W. Pederson, of Pederson & Troshynski, for appellant. Robert S. Lannin and Chris S. Schmidt, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., Lincoln, for appellee Vandelay Investments, L.L.C.
Judge Panel:Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ. Wright and Kelch, JJ., not participating. Cassel, J., dissenting in part.
Case Date:August 24, 2018
Court:Supreme Court of Nebraska

Page 698

916 N.W.2d 698 (Neb. 2018)

300 Neb. 825

Robin J. WISNER, as Personal Representative of the Estate of Gladys P. Wisner, deceased, appellant,


VANDELAY INVESTMENTS, L.L.C., a Nebraska limited liability company, et al., appellees.

No. S-16-451

Supreme Court of Nebraska

August 24, 2018

Page 699

[Copyrighted Material Omitted]

Page 700

[Copyrighted Material Omitted]

Page 701

[Copyrighted Material Omitted]

Page 702

[Copyrighted Material Omitted]

Page 703


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

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

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

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

5. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[300 Neb. 828] 28. Statutes: Appeal and Error. Generally, statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

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

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

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

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

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

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

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

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

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

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

39. Tax Sale: Notice:...

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