Carla S. v. Frank B.
Carla S. v. Frank B.
Opinion of the Court
¶ 1. Carla S., Carl S.'s daughter, appeals from an order authorizing her father's guardian to terminate Carl's life lease of his home. She complains of a lack of due process in the guardianship hearing, that the trial court's reasons for its order were insufficient, and that the trial court failed to consider other alternatives for the property other than termination of the life lease. The guardian contests Carla's substantive assertions and asserts that she does not have standing to bring this appeal. We conclude that Carla does have standing, both in the trial court and on appeal, and that the trial court erred by failing to consider other alternatives to terminating Carl's life lease agreement. We therefore reverse and remand for further proceedings.
¶ 2. In 1991, Carl and his wife, Genevieve, deeded their home to three of their children and a grandchild. The deed was contemporaneous with a lease, in which Carl and Genevieve leased the home for
¶ 3. Genevieve died in 1993, and Carl continued living in the home until 1997, when he suffered a stroke requiring hospitalization, nursing home care, and ultimately, a guardianship. In 1999, Carl's guardian petitioned the circuit court for an order authorizing the "termination of the Ward's interest in a certain lease." The reason the guardian gave for wanting this disposition was that Carl did not reside at the premises, and the guardian was obligated to pay real estate taxes and insurance on the property. Although the guardian cited WlS. STAT. § 880.19 (1997-1998)
¶ 4. Before addressing the merits of Carla's appeal, we must consider the guardian's argument that Carla lacks standing to bring this appeal. He does not dispute that Carla had standing in the trial court, but asserts that on appeal she does not. At the hearing on the guardian's petition, the court questioned Carla's standing to contest the petition. The court ultimately concluded that Carla had standing after Carla's attorney pointed out that she was an "interested person," defined in Wis. Stat. § 880.01(6) as an adult relative of the ward. The court then heard evidence from the guardian, who testified that he was paying taxes and other costs associated with the home, but had never tried to rent the home. Carla testified that Carl wanted to return home, with skilled nursing care, whereas if
¶ 5. Whether a person has standing to participate in an action or proceeding is a question of law that we review de novo. Wisconsin Hosp. Ass’n v. Natural Res. Bd., 156 Wis. 2d 688, 700, 457 N.W.2d 879 (Ct. App. 1990). Standing is not a question of jurisdiction, but of sound judicial policy. Wisconsin Bankers Ass'n v. Mutual Sav. & Loan Ass'n, 96 Wis. 2d 438, 444 n.1, 291 N.W.2d 869 (1980). The law of standing is complex and depends in large measure on the type of claim asserted. State ex rel. Parker v. Sullivan, 184 Wis. 2d 668, 678 n.6, 517 N.W.2d 449 (1994). The purpose of the requirement of standing is to ensure that a concrete case informs the court of the consequences of its decision and that people who are directly concerned and are truly adverse will genuinely present opposing petitions to the court. Id. The law of standing should not be construed narrowly or restrictively. State v. Iglesias, 185 Wis. 2d 117, 132, 517 N.W.2d 175 (1994). A party has standing when its claims are no more than a "trifle." State ex rel. First Nat'l Bank v. M & I Peoples Bank, 95 Wis. 2d 303, 309, 290 N.W.2d 321 (1980). Under Wisconsin's law of standing, we must determine whether the party seeking standing was injured in fact, and whether the interest allegedly injured is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.
¶ 6. The guardian has cited no authority holding that a party who has standing in the trial court can nonetheless lack standing on appeal. "Standing" is often referred to as "standing to sue," a trial court concept. See, e.g., Sandroni v. Waukesha County Bd., 173 Wis. 2d 183, 186, 496 N.W.2d 164 (Ct. App. 1992). Logic suggests that a litigant who has standing in a trial court would ordinarily have standing on appeal. There is an appellate requirement that the right to appeal is limited to persons "aggrieved" by a final judgment or order. Ford Motor Credit Co. v. Mills, 142 Wis. 2d 215, 217, 418 N.W.2d 14 (Ct. App. 1987). A person may be an aggrieved party entitled to appeal from a judgment even though he or she is not a named party to the suit if he or she has a substantial interest adverse to the judgment either directly or by privity. Id. at 218. It would be strange indeed if a person who has been recognized by the legislature as an "interested person" and whose standing has been recognized by the trial court, would nonetheless lack standing to appeal the very determination for which he or she had standing in the trial court. And, as we will next explain, interested persons have been judicially recognized as having standing in appellate courts.
¶ 7. Wisconsin Stat. § 319.08 (1961), a predecessor to Wis. Stat. § 880.08, required only that notice of a guardian appointment proceeding be given to the proposed ward or his or her custodian, the proposed ward's presumptive or apparent heirs, and to such other persons as the court ordered. Nonetheless, in a case where an interested person sought unsuccessfully to collaterally attack a guardian's appointment, the court concluded: "This is not to say that the original determi
¶ 8. There is little difference between WlS. STAT. § 880.08 and WlS. STAT. § 880.19(5) in their treatment of interested persons. Section 880.19(5) permits an interested person to petition the court for an order authorizing the guardian to sell a ward's property. Section 880.08 provides that an interested person may, under some circumstances, request a hearing at a place where the proposed ward may attend. But there is no mention in either statute of the right of an interested person to participate in the hearing, nor a directive that he or she may not. Neither statute specifically addresses whether Carla has standing. And this is unremarkable. Fewer than a dozen statutes address standing.
¶ 10. The guardian relies upon Coston, 222 Wis. 2d at 20-21, to conclude that Carla did not have the right to present and cross-examine witnesses, to demand a trial, to present evidence, or to raise eviden-tiary objections at the hearing. This is an overreading of Coston. While we noted in Coston, as we do here, that no statute provided for interested persons to demand a trial, present evidence, or raise evidentiary objections, we also said:
This is not to conclude, however, that circuit courts are foreclosed from allowing for the participation of interested persons. Depending on the facts and circumstances of a given case, a court could consider such participation to be very helpful, and could exercise discretion to allow interested persons to participate to the extent it would deem appropriate.4
¶ 11. We turn to the substantive issues. Carla asserts that the trial court failed to consider alternatives to terminating Carl's lease. An alternative that Carla suggested was that Carl should return home and save nursing home costs by using home care providers. On appeal, Carla argues that the trial court also should have considered renting Carl's home, thereby preserving it in a financially viable manner. She concludes that making a gift of Carl's property is contrary to Carl's best interests. The guardian does not complain that Carla failed to raise this issue in the trial court, but instead addresses Carla's issue on the merits. He claims that "the basis for allowing a Guardian to transfer the real property of a ward is clearly set forth in the Wisconsin Statutes," and that the transfer of the property was not a "gift" in the traditional or legal sense of the word. Because the parties have briefed the issue of a guardian's authority to make a gift of the ward's property, we will consider it. See Beard v. Lee Enterprises, Inc., 225 Wis. 2d 1, 17, 591 N.W.2d 156 (1999).
¶ 12. The guardian admitted that he had never tried to rent Carl's house to provide income for the guardianship estate. Common sense tells us that the opportunity to rent or sell a home for one dollar per year plus an amount equaling taxes, insurance, utilities, and upkeep is something of considerable value.
¶ 13. While we agree with the guardian that Wis. Stat. § 880.19(5) provides for the "transfer" of a ward's property, that statute does not mention gifts as a method of transfer. Section 880.19(5) permits a guardian to "sell, mortgage, pledge, lease or exchange any property of the guardianship estate." Gifts are conspicuously absent from the statutory ways a guardian my transfer a ward's property. And in V.D.H. v. Circuit Court, 154 Wis. 2d 576, 584, 453 N.W.2d 882 (1990), the supreme court, in reviewing the powers of a guardian under § 880.19 held:
The guardian had no authority, however, to exercise any power over the ward's property which was not conferred by statute. Thus, the guardian of the estate could not make a gift of property of the estate on the ward's behalf or exercise on the ward's behalf those property rights denominated as "personal" to the ward....
We do not accept the guardian's assertion that the gift of the life lease was in reality not a gift. The guardian suggests that relieving Carl of the burden of paying real estate taxes, insurance, and maintenance is consideration for the transfer of the property.
¶ 14. We conclude that the trial court erred by not considering alternatives less drastic than a gift of Carl's property to his landlords. Having so concluded, we need not consider Carla's other reasons she believes that we should reverse the trial court's order.
By the Court. — Order reversed and cause remanded with directions.
All references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.
For example, Wis. Stat. § 184.07 gives nonprofit associations standing under some circumstances. And WlS. STAT. § 867.02(2) gives certain persons standing to petition for sum
Coston v. Joseph P., 222 Wis. 2d 1, 20-21, 586 N.W.2d 52 ( Ct. App. 1998), relies upon R.S. v. Milwaukee County, 162 Wis.
As a general proposition, there would be few people who would agree that giving their homes to another to avoid the payment of taxes, insurance, and maintenance would be a quid pro quo.
Sale of Carl's interest would result in an estate per autre vie, an estate "for or during a period measured by another's life." Black's Law Dictionary 1156, 1248 (7th ed. 1999). The likely buyers would be Carl's landlords, or someone willing to purchase housing discounted for an uncertain length of tenancy.
Dissenting Opinion
¶ 15. (dissenting). I conclude that Carla S. lacks standing to bring this appeal, and I therefore dissent.
¶ 16. In March 1997, the court appointed a guardian for Carl S. and ordered that he be protectively placed. Carl is now ninety years old, has suffered a stroke and other infirmities, and currently resides in a nursing home. In May 1999, his guardian petitioned the court for an order authorizing the guardian to terminate Carl's "life lease" in his former residence. The lease in question had been entered into by Carl and his late wife in 1991, after they deeded their residence to three of their children and a grandchild. Under its terms, Carl paid rent of $1.00 per year and was respon
¶ 17. Carl's daughter, Carla, although not among the persons who were owners/lessors of the property, objected to termination of the lease and petitioned the court "for the recognition of standing . . . regarding the Petition that has been filed by the Guardian." She appeared with counsel at the hearing on the petition. The guardian disputed whether Carla had standing to object to the petition, but the court concluded that there was no "reason why she ... should not be permitted to have some input into the issue of whether it's appropriate that the life lease be terminated" and ruled that Carla could "participate in the proceedings."
¶ 18. The guardian testified consistently with his averments in support of the petition. Carla's counsel was permitted to cross-examine the guardian, and Carla testified in opposition to the guardian's request. Her position was that the lease should not be terminated because her father might be able to return to his home if necessary home care could be arranged. The court concluded that medical reports in the record, and past recommendations of Carl's guardian ad litem regarding his placement needs, rendered the possibility of his returning to his home remote at best. The court also credited the guardian's testimony that, financially, it was in Carl's best interest, if not an imperative, that his obligations under the lease be terminated. Accordingly, the court entered an order authorizing the guardian to "take such steps as may be
¶ 19. A person may not appeal from a judgment unless he or she is aggrieved by it. This means that the judgment must bear directly and injuriously upon his or her interests; the person must be "adversely affected in some appreciable manner." Ford Motor Credit Co. v. Mills, 142 Wis. 2d 215, 217-18, 418 N.W.2d 14 (Ct. App. 1987) (citations omitted). It is not necessary for standing in this court that an appellant has been "a named party to the suit," id. at 218, and we are to " 'liberally construe the law of standing.'" Koller v. Liberty Mut. Ins. Co., 190 Wis. 2d 263, 266, 526 N.W.2d 799 (Ct. App. 1994) (citation omitted). Nonetheless, "a strong desire to be heard by the court is not enough to establish standing" — a "direct effect" on one's "legally protected interest" is required. L.P. v. B.G., 177 Wis. 2d 424, 427, 501 N.W.2d 908 (Ct. App. 1993). The question presented is one of law. Id.
¶ 20. There can be no dispute that Carla is an "interested person" for purposes of the guardianship statutes. See Wis. Stat. § 880.01(6) (1999-2000)
¶ 21. We noted in Coston, however, that "circuit courts are [not] foreclosed from allowing for the participation of interested persons" and that a court "could exercise discretion to allow interested persons to participate to the extent it would deem appropriate." Id. at 21. The trial court in this case did that very thing at the hearing on the guardian's petition to terminate the lease:
1 don't see any reason why [Carla]. . . should not be permitted to have some input into the issue of whether it's appropriate that the life lease be terminated, and so I'm going to treat her as if she has standing to appear in that proceeding at this time.
The court's discretionary decision to allow Carla's input and participation in the trial court proceedings, however, does not necessarily confer on her the necessary "legally protected" or "substantial" interest in the resulting order that would render her a person "adversely affected in some appreciable manner" by it.
¶ 22. The appellants in Coston were a sister and niece of the ward. Id. at 4. Their standing to appeal the order which determined Joseph to be incompetent, appointed a guardian of his person and estate, and protectively placed him, was apparently not challenged. We did not address the issue in our opinion.
¶ 23. I conclude that Carla was not aggrieved by the order authorizing her father's guardian to terminate the life lease. Once a guardian of the estate is appointed, the management and disposition of a ward's property is largely a matter for the guardian and the court to determine. Wis. Stat. § 880.19. Interested persons, as defined in Wis. Stat. § 880.01(6),
¶ 25. Carla argues in her reply brief that the guardian waived the issue of her standing in the trial
That would be the only way that I would see her as a person with any standing on this — this limited issue.
Conversely, I see there could be an interpretation where she doesn't have standing by virtue of the fact she's not a party to the lease agreement at all, and it's hard for me to understand how if the lease is terminated she would be impacted in any event. She certainly doesn't benefit by virtue of having the lease. If it's terminated I don't see how that's a detriment to her. And in that sense, I don't know how she would be impacted and I think that could be considered in determining standing also.
And later, counsel told the court, correctly:
I think 880 makes it pretty clear that the court has discretion on matters of transfer of real property interest of the ward to basically give notice to whomever the court directs. ... I think it's within the court's discretion to make that determination solely in your discretion as to whether [Carla] has any rights in this hearing or not.
In short, the issue of Carla's standing to appeal the present order has not been waived.
All references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise noted.
We noted in Coston that "interested persons" have a statutory right to petition for the appointment of a guardian and to nominate a guardian. Coston v. Joseph P., 222 Wis. 2d 1, 11, 586 N.W.2d 52 (Ct. App. 1998). This would certainly seem to give an interested person standing to appeal an order denying his or her
I also acknowledge the supreme court's comment in Bryn v. Thompson, 21 Wis. 2d 24, 29, 123 N.W.2d 505 (1963), on which the majority relies, to the effect that "any interested party" may take "a direct appeal of the initial order" in a guardianship. I note, however, as does the majority, that the case was decided under statutes which preceded the present chapter 880, and further, that the right of any interested person to appeal an initial order appointing a guardian was not at issue in Bryn. (The appeal was of the final order approving the guardian's account; it was taken by the administrator of the deceased ward's estate; and the issue was whether the initial order establishing the guardianship could be collaterally attacked in an appeal of the final order terminating it.)
Our conclusion in Coston that non-petitioning interested persons have no statutory right "to demand a trial, present evidence, or raise evidentiary objections in guardianship and protective placement hearings," 222 Wis. 2d at 21, would seem to undermine the ability of a non-petitioner to claim to be aggrieved by an order appointing a guardian. See Richard D. v. Rebecca G., 228 Wis. 2d 658, 661-62, 599 N.W.2d 90 (Ct. App.), review denied, 230 Wis. 2d 276, 604 N.W.2d 573 (Wis. Oct. 26, 1999) (No. 99-0433) (concluding that "the right of foster parents to participate and present evidence in hearings" was the key factor in their being "aggrieved" and entitled to appeal an order under chapter 48). In any event, as I discuss in the text, the order which Carla attempts to appeal is not the initial order appointing a guardian for her father, but an order authorizing the guardian to terminate his rights and obligations under a lease.
As I have noted, Carla is an "interested person" under WlS. Stat. § 880.01(6), in that she is the daughter of a person "protected under" chapter 880. She is not, however, a "person in any way interested in the real estate," see Wis. Stat. § 786.01, because she, unlike Carl's other children and one of his grandchildren, possessed no legal or equitable interest in the real estate that was subject to the lease in question.
In addition to objecting to the guardian's request to terminate the life lease, Carla also filed a petition for a "re-hearing" on whether Carl should continue to be subject to a guardianship and protective placement, for the appointment of adversary counsel for Carl, and for the removal of his present guardian. The appealed order addresses none of these matters, and the record does not disclose what action, if any, has been taken on Carla's petitions. My conclusion that Carla lacks standing is limited to her attempted appeal of the order authorizing the guardian to terminate the ward's lease-hold interest in his former residence. The question of the standing of "interested persons" to appeal other orders that may be entered in proceedings under chapters 880 and 55 is not presented by this appeal.
Given that there is nothing in the record to support the majority's theory that Carl's life interest in the property could be sold or profitably subleased, it is perhaps understandable that the majority relies heavily on conjecture. (See ¶ 12, "Common sense tells us "Tenants almost always ¶ 13, n.5, "As a general proposition, there would be few people who would agree . . . .") I submit that it would be at least as reasonable, if not more so, to assume that prospective purchasers or subtenants for a leasehold interest that is coterminous with the life of an infirm ninety-year-old would be few and far between.
Reference
- Full Case Name
- In the Matter of the Guardianship and Protective Placement of Carl F. S.: Carla S., Appellant, v. Frank B., Respondent
- Cited By
- 10 cases
- Status
- Published