Carla S. v. Frank B.

BEININGER, J.

¶ 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*617sible for all real estate taxes, insurance, utilities, and "any other expenses related to the property," including repairs. The lease was for the joint lives of Carl and his wife. Carl's guardian averred that Carl was "unlikely to return" to the premises and that he was "without the financial wherewithal to make the payments required by the Lease Agreement."

¶ 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 *618necessary to terminate" Carl's lease-hold interest in the residence.

¶ 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)1 (" 'Interested person' means any adult relative or friend of a person to be protected under this subchapter . . . ."). We have recently considered in some detail the rights of "interested persons" with respect to guardianship and protective placement proceedings under chapters 880 and 55. See Coston v. Joseph P., 222 Wis. 2d 1, 11-22, 586 N.W.2d 52 (Ct. App. 1998). While we concluded that interested persons "can have important roles" in such proceedings, id. at 11, their rights to participate are not unlimited. Id. at 13. Specifically, we concluded that "[n]o statute provides for interested *619persons to demand a trial, present evidence, or raise evidentiary objections in guardianship and protective placement hearings — whether contested or uncontested." Id. at 21.

¶ 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.2 *620The present appeal, however, does not involve an order initially establishing a guardianship, appointing a guardian, or ordering protective placement. The present order is much more limited in scope. It deals only *621with the guardian's authority to dispose of the ward's interest in a lease.

¶ 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),3 may petition the court for an order directing the guardian to sell or otherwise dispose of property of a ward, may complain to the court of suspected fraud or mismanagement of a ward's estate, and may request the court to require a guardian to file accounts. See Wis. Stat. §§ 880.19(5)(b); 880.16(4); 880.252; Coston, 222 Wis. 2d at 12 n.8. When a guardian seeks the court's authority to dispose of a ward's interest in real estate, however, "interested persons" like Carla need not even be given notice of the request. Section 880.19(5)(b) ("The court, on the application of the guardian of the estate ... after such notice if any, as the court directs, may authorize the guardian to sell . . . any property of the guardianship estate upon such terms as the court may order."); WlS. Stat. § 786.09 ("Upon the presentation of [a petition for sale or encumbrance] . . . the presiding judge may proceed in a summary manner to inquire into the merits of such application ....").

*622¶ 24. In view of Carla's lack of a statutory right to participate in (or even to have notice of) the proceedings regarding the disposition of Carl’s leasehold interest, I conclude that Carla has not shown that the appealed order "bear[s] directly and injuriously upon" a legally protected interest of hers, or "adversely affec[ts]" her in "some appreciable manner." Tierney v. Lacenski, 114 Wis. 2d 298, 302, 338 N.W.2d 522 (Ct. App. 1983). Indeed, the issues she has attempted to raise in her brief relate to alleged violations of Carl's rights and interests —not hers. But Carl's rights and interests with respect to the subject matter of the instant proceedings are not hers to raise. As we noted in Coston, 222 Wis. 2d at 22, Carla has other avenues to pursue what she believes to be her father's best interests, for example, by seeking court review of his placement and of his competency status. Additionally, she may complain to the court regarding the guardian's management of her father's estate, and seek his removal.4

¶ 25. Carla argues in her reply brief that the guardian waived the issue of her standing in the trial *623court. I first observe that a person's standing to appeal a circuit court order is a matter to be decided by this court, and I fail to see how any action or omission of a party in the circuit court could be deemed to foreclose our consideration of who has standing to appear before us. Moreover, I conclude that Carla's waiver argument mischaracterizes the record. She cites the following statement by counsel for the guardian: "[S]he is the daughter of the ward, so I suppose ostensibly there could be standing. . . ." The guardian's counsel, however, went on to say:

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.

*624¶ 26. Because I conclude Carla lacks standing to appeal the instant order, I would dismiss the appeal. My recommended disposition would thus terminate the appeal before reaching the merits of any issue Carla attempts to raise, and I will not discuss those issues in this dissent. I note, however, that the majority's rationale for reversing and remanding finds little support in the record. First, Carla never testified that she believed the residence should be rented out, or that it profitably could be. She never cross-examined the guardian regarding the suitability of the property in question as a rental, or the possibility that a sub-tenant could be found who would pay rent sufficient to exceed Carl's obligations under the lease. Finally, she never argued to the court that it should require the guardian to attempt to obtain a renter or purchaser for the property, or that the disposition constituted a "gift," as the majority concludes.5 Her sole argument in the trial court for not terminating the lease was premised on the possibility of Carl's re-occupying the home. See State v. Rogers, 196 Wis. 2d 817, 827, 539 N.W.2d 897 (Ct. App. 1995) ("We will not. . . blindside *625trial courts with reversals based on theories which did not originate in their forum.").

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 *620petition or nomination, and it may be a sufficient basis on which to confer standing on a non-petitioning interested person to appeal an order which appoints a guardian at the request of another.

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.