Argument: January 25, 2016
OF A DECISION OF THE COURT OF APPEAL (Reported at 364 Wis.2d
599, 868 N.W.2d 599)(Ct. App. 2015 – Published) PDC No:
2015 WI App. 55
of a decision of the Court of Appeals. Circuit Court Brown
County Marc A. Hammer Judge, Reversed in part, affirmed in
part and remanded.
the intervenors-cross-claim defendants-third-party
plaintiffs-appellants-petitioners, there were briefs by
George Burnett and the Law Firm of Conway, Olejniczak &
Jerry, S.C., Green Bay. Oral argument by George Burnett.
the third-party defendant-respondent, the cause was argued by
S. Michael Murphy, assistant attorney general, with whom on
the brief was Brad D. Schimel, attorney general.
PATIENCE DRAKE ROGGENSACK, C.J.
We review a published decision of the court of appeals,
which affirmed the circuit court's order entitling
the Department of Revenue (DOR) to garnish land contract
proceeds due to James N. Vandenberg (James) and three other
tenants-in-common of real property, Sharon Kempen, Sandra
Schmidt and Mark Vandenberg (collectively, the intervenors),
and denying the intervenors' request to partition the
real estate that is subject to the land contract.
Our review centers on three issues: (1) whether the DOR is
entitled to garnish any portion of the final land contract
payment; and, if so, (2) whether the DOR is entitled to
garnish 1/4 of the final payment due on the land contract or
1/4 of the land contract's full purchase price; and (3)
whether the circuit court erroneously exercised its
discretion in refusing to partition the property.
We conclude that the DOR is entitled to garnish a portion of
the final land contract payment, and the portion subject to
garnishment is limited to the amount that James could require
be paid to him from that payment. We remand to the circuit
court to make the factual determination of the amount that
James has a right to receive from the final payment.
Finally, we conclude that the circuit court did not
erroneously exercise its discretion by refusing to partition
the property. Accordingly, we reverse the court of appeals in
part, affirm in part and remand.
In 1997, James, Sharon Kempen, Sandra Schmidt and Mark
Vandenberg acquired real estate located in Brown County as
tenants-in-common, with each individual having an undivided
1/4 ownership interest. During the time that they owned the
property, James accumulated personal debts that resulted in
encumbrances being filed against the property.
For example, on February 16, 2004, James gave a mortgage to
M&I Marshall & Ilsley Bank for a $54, 100
indebtedness. On January 4, 2010, DOR docketed two tax
warrants totaling $112, 655.24 for taxes that James owed. And
on May 6, 2010, Prince Corporation (Prince) obtained a money
judgment against James for $165, 000. The judgment was
docketed in Brown County on May 6, 2010. Finally, on June 3,
2010, the State of Wisconsin docketed a judgment against
James for $100, 000 in Brown County.
On July 14, 2011, James and the intervenors contracted to
sell their property to Van De Hey Real Estate, LLC (Van De
Hey) on land contract for $341, 700. The land contract provided
that Van De Hey would remit payments in the following manner:
$113, 900 at the execution of the contract on July 14, 2011;
$113, 900 on October 1, 2011; and the remaining $113, 900 on
April 15, 2012. The land contract also provided that James
and the intervenors were obligated to deliver a warranty deed
to the property, "free and clear of all liens and
encumbrances" when the final payment was made.
Van De Hey timely made the first two payments as required by
the land contract. On February 17, 2012, Prince filed a
non-earnings garnishment summons and complaint, seeking to
garnish Van De Hey's final payment of $113, 900 as
partial satisfaction of its judgment against James. The
intervenors moved to intervene in Prince's garnishment
action, and the circuit court granted their motion on June 6,
2012. The intervenors argued that the DOR had an interest
superior to Prince's interest. They also argued that
garnishment was limited to James's 1/4 share of the final
$113, 900 payment, which was $28, 475. However, on November
6, 2012, the circuit court issued an order entitling Prince
to garnish 1/4 of the full contract price, or $85, 425. Van
De Hey did not make the final payment.
On November 14, 2013, the intervenors filed a third-party
summons and complaint, impleading the DOR as an interested
party due to its earlier filed tax warrants that resulted
from James's delinquent taxes. They attached as exhibits to
their third-party complaint copies of Prince's
non-earnings garnishment complaint and the land contract for
the sale of the property.
On December 20, 2013, the DOR answered the third-party
complaint, admitting that it claimed an interest in the
property because it docketed state income tax warrants
against James for $64, 719.47 and $47, 935.77 on January 4,
2010. The DOR's answer further stated that
"judgment is requested in accordance with the foregoing,
together with such other and further relief as is just and
On April 9, 2014, the intervenors moved for partition as well
as reconsideration of the circuit court's November 6,
2012 order entitling Prince to garnish $85, 425 from Van De
Hey's final land contract payment. The intervenors argued
that Prince's garnishment action should be dismissed due
to the DOR's superior tax warrants and that garnishment
by any party was limited to James's 1/4 outstanding share
of the final payment, or $28, 475. The intervenors also
requested partition of the property as the only method of
conveying title to Van De Hey "free and clear of all
liens and encumbrances" as required by the land
On reconsideration, the circuit court concluded that it would
"maintain its previous holding that a valid lienholder
may garnish the entirety of [James's] interest in the
land sale--one-fourth of the total contract price[, ] or $85,
425." However, the circuit court concluded that the
DOR's previously-docketed tax warrants were superior to
Prince's money judgment. Therefore, the circuit court
held that the DOR, rather than Prince, was entitled to
garnish $85, 425 from Van De Hey's final payment of $113,
With respect to the intervenors' request for partition,
the circuit court acknowledged that "[a]ny person having
an interest in real property" has the right to request
partition. However, the circuit court denied partition
because any such action would prejudice one or more persons
with an interest in the property. Both Prince and the
intervenors separately appealed the circuit court's
The court of appeals affirmed in all respects, holding that
(1) the DOR's answer to the third-party complaint was
sufficient to entitle it to garnish a portion of Van De
Hey's final payment; (2) the DOR was entitled to garnish
1/4 of the full sale price of the land contract, $85, 425;
and (3) the circuit court did not erroneously exercise its
discretion in denying partition. We granted the
intervenors' petition for review.
Standard of Review
Resolution of this dispute requires us to interpret and apply
Wisconsin garnishment statutes. Statutory interpretation
and application are questions of law that we review
independently, while benefitting from the analyses of the
circuit court and court of appeals. Richards v. Badger
Mut. Ins. Co., 2008 WI 52, ¶14, 309 Wis.2d 541, 749
N.W.2d 581; Milwaukee Stove & Furnace Supply Co. v.
Apex Heating & Cooling, Inc., 142 Wis.2d 151, 155,
418 N.W.2d 4 (Ct. App. 1987) (explaining that garnishment is
a statutory remedy, requiring independent appellate review).
Although the common law of partition is now codified, it
remains an equitable remedy. Klawitter v. Klawitter,
2001 WI App. 16, ¶7, 240 Wis.2d 685, 623 N.W.2d 169.
Therefore, we review the circuit court's partition
decision under the "highly deferential" erroneous
exercise of discretion standard, which we apply to equitable
remedies. Id., ¶8 (applying erroneous exercise
of discretion to circuit court's discretionary decision
in regard to contribution during partition action);
Associated Bank N.A. v. Collier, 2014 WI 62,
¶22, 355 Wis.2d 343, 852 N.W.2d 443 (explaining that
review of a circuit court's decision about whether to
employ its equitable powers applies the erroneous exercise of
B. General Principles of Statutory Interpretation
"[S]tatutory interpretation 'begins with the
language of the statute. If the meaning of the statute is
plain, we ordinarily stop the inquiry.'" State
ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI
58, ¶45, 271 Wis.2d 633, 681 N.W.2d 110 (quoting
Seider v. O'Connell, 2000 WI 76, ¶43, 236
Wis.2d 211, 612 N.W.2d 659). Plain meaning may be ascertained
not only from the words employed in the statute, but also
from the context. Id., ¶46. We interpret
statutory language in the context in which those words are
used; "not in isolation but as part of a whole; in
relation to the language of surrounding or closely-related
statutes; and reasonably, to avoid absurd or unreasonable
"If the words chosen for the statute exhibit a
'plain, clear statutory meaning, ' without ambiguity,
the statute is applied according to the plain meaning of the
statutory terms." State v. Grunke, 2008 WI 82,
¶22, 311 Wis.2d 439, 752 N.W.2d 769 (quoting Kalal, 271
Wis.2d 633, ¶46). However, where the statute is
"capable of being understood by reasonably well-informed
persons in two or more senses[, ]" then the statute is
ambiguous. Kalal, 271 Wis.2d 633, ¶47. Where the
language is ambiguous, we may consult extrinsic sources.
Id., ¶50. "While extrinsic sources are
usually not consulted if the statutory language bears a plain
meaning, we nevertheless may consult extrinsic sources
'to confirm or verify a plain-meaning
interpretation.'" Grunke, 311 Wis.2d 439, ¶22
(quoting Kalal, 271 Wis.2d 633, ¶51).
Garnishment is a remedy available to a creditor, the
garnishor, seeking satisfaction of its debtor's debts by
garnishing property of the debtor, the defendant, that is in
the hands of a third-party, the garnishee. See Mundt v.
Shabow, 120 Wis. 303, 304, 97 N.W. 897 (1904); Wis.Stat.
§ 812.01. Garnishment is a wholly statutory remedy,
requiring strict compliance. Liberty Loan Corp. &
Affiliates v. Eis, 69 Wis.2d 642, 646-47, 230 N.W.2d 617
(1975) (explaining that the statutory prerequisites for
garnishment are strictly enforced); Milwaukee Stove, 142
Wis.2d at 155 (stating that action for garnishment will not
lie absent statutory authority). Therefore, "the right
to commence a garnishment action must be found within the
provisions of the garnishment statute[s]." Hometown
Bank v. Acuity Ins., 2008 WI App. 48, ¶8, 308
Wis.2d 503, 748 N.W.2d 203.
Chapter 812, Subchapter I of the Wisconsin Statutes governs
non-earnings garnishment actions. Wisconsin Stat. §
812.01(1) provides that any "creditor may commence a
nonearnings garnishment [action] 'against any person who
is indebted to or has any property in his or her possession
or under his or her control belonging to such creditor's
debtor.'" Id. (quoting Wis.Stat. §
812.01(1)). Wisconsin Stat. § 812.04(3) states that
"[a] garnishment action shall be commenced by the filing
of a garnishee summons and annexed complaint."
Pursuant to the foregoing statutes, Prince, the garnishor,
commenced the instant garnishment action against Van De Hey,
the garnishee, having possession of land contract proceeds
due to James, the debtor, by virtue of Van De Hey's
obligation to make payments under the land contract. As
required by Wis.Stat. § 812.04(3), Prince filed a
non-earnings garnishment summons and complaint on February
17, 2012 and timely served the appropriate parties;
thereafter, the garnishment action proceeded in circuit
Neither the intervenors nor Van De Hey has argued that the
garnishment action was not properly commenced by Prince.
Accordingly, we assume, without deciding, that Prince
strictly complied with Wis.Stat. § 812.04(3), thereby
properly commencing the instant garnishment action against
James's right to payment from Van De Hey.
Impleader into already-commenced garnishment action
Although it is undisputed that Prince properly commenced the
instant garnishment action, the intervenors argue that the
DOR is not entitled to garnish any portion of Van De
Hey's final payment because the DOR did not file a
non-earnings garnishment summons and complaint after being
impleaded into the garnishment action.
However, Wis.Stat. § 812.17 addresses impleading a
third-party into an already-commenced garnishment action
where that third-party claims an interest in the property
held by the garnishee:
When the answer of the garnishee discloses that any 3rd
person claims the debt or property in the garnishee's
hands[, ] . . . the court may order that such claimant be
impleaded as a defendant in the garnishment action . . . .
Upon such service being made[, ] such claimant shall be
deemed a defendant in the garnishee action, and within 20
days shall answer setting forth the claimant's claim or
any defense that the garnishee might have made.
Wis. Stat. § 812.17.
Initially, we note that Wis.Stat. § 812.17 contemplates
impleader when it is the answer of the garnishee that
discloses a third-party's claim to the garnishable
property. In the instant case, it was not the answer of the
garnishee, Van De Hey, that disclosed the DOR's superior
claim to a portion of the final payment under the land
contract. Rather, upon learning of Prince's garnishment
action against Van De Hey, the intervenors moved to intervene
and sought to implead the DOR due to tax warrants docketed
against the real estate. Accordingly, the intervenors
impleaded the DOR into the already-commenced garnishment
action by serving a third-party summons and complaint, to
which they attached Prince's original non-earnings
Perhaps because they are the very parties who impleaded the
DOR, the intervenors do not argue to us that the DOR is not a
proper party to the already-commenced garnishment action.
Although the intervenors raised this argument to the court of
appeals, the court of appeals properly noted that the
intervenors did not argue to the circuit court that impleader
of the DOR was improper under Wis.Stat. § 812.17. As the
intervenors do not raise the issue before us and did not
raise the issue to the circuit court, we will not consider
it. Shadley v. Lloyds of London, 2009 WI App. 165,
¶25, 322 Wis.2d 189, 776 N.W.2d 838 (stating that
"[i]t is well-established law in Wisconsin that those
issues not presented to the trial court will not be
considered for the first time at the appellate level."
(citing State v. Gove, 148 Wis.2d 936, 940-41, 437
N.W.2d 218 (1989); State v. Caban, 210 Wis.2d 597,
604-05, 563 N.W.2d 501 (1997); Hopper v. City of
Madison, 79 Wis.2d 120, 137, 256 N.W.2d 139 (1977))).
Indeed, arguing that the DOR was not a proper party to the
garnishment action would have been contrary to the
intervenors having sought to implead the DOR in the first
instance. Therefore, we assume, without deciding, that the
DOR was properly impleaded as a party to the
already-commenced garnishment action under Wis.Stat. §
812.17. However, the intervenors argue that the DOR is not
entitled to garnishment because it did not file a
non-earnings garnishment summons and complaint after being
impleaded under Wis.Stat. § 812.17.
While a non-earnings garnishment summons and complaint are
required by Wis.Stat. § 812.04(3) in order to commence a
garnishment action, the plain language of Wis.Stat. §
812.17 does not require an impleaded third-party to file a
summons and complaint in an already-commenced garnishment
action in order to be entitled to garnish the property to
which it claims an interest. We decline to impose a
requirement that is plainly not required by the statute.
Harris v. Kelley, 70 Wis.2d 242, 250, 234 N.W.2d 628
(1975) (declining to rewrite statute under the guise of
statutory interpretation). Rather, once a garnishment action
is commenced under Wis.Stat. § 812.04(3) and the
impleaded third-party files an answer setting forth its claim
to the property in the garnishee's hands, the impleaded
third-party begins its garnishment. Wis.Stat. § 812.17.
As aptly noted by the court of appeals, "[t]hat is
precisely what happened in this case." Prince Corp.
v. Vandenberg, 2015 WI App. 55, ¶37, 364 Wis.2d
457, 868 N.W.2d 599.
Namely, the DOR answered the third-party complaint, asserting
its claim to James's ownership interest in the land
contract payment based on state income tax warrants for
James's delinquent taxes. Specifically, the DOR's
answer stated that it "claims an interest in the
Property, by virtue of the following delinquent state tax
warrants which have been docketed . . . against James N.
Vandenberg." The DOR's answer identified two
warrants that were docketed on January 4, 2010.
We conclude that the DOR's answer sufficiently set forth
its claim to the garnishable property at issue in the
already-commenced garnishment action; namely, a portion of
the final payment due under the land contract. Initially, it
is significant that the DOR filed its answer in response to
the third-party complaint, which incorporated by reference
Prince's original non-earnings garnishment complaint as
well as the land contract. Prince's non-earnings
garnishment complaint clearly indicates that Prince was
seeking to garnish the final payment due under the land
Furthermore, in listing its state income tax warrants in its
answer, the DOR identified its interest in the final payment
pursuant to Wis.Stat. § 71.91(4), which provides that
unpaid state income taxes "shall be a perfected lien in
favor of the [DOR] upon all property and rights to
property." This includes both real and personal
property. Wis.Stat. § 71.91(6)(a)3. Therefore, by virtue
of docketing its state income tax warrants, the DOR obtained
a statutory, perfected lien on James's right to payment
from Van De Hey. The DOR requested judgment in the
already-commenced garnishment action in accordance with the
priority of its tax warrants relative to Prince's
docketed money judgment. Accordingly, we conclude that the
DOR's answer sufficiently set forth its claim to
James's interest in a portion of Van De Hey's final
land contract payment.
Consequently, we conclude that the DOR is entitled to garnish
a portion of Van De Hey's final payment under Wis.Stat.
§ 812.17. Therefore, we must next determine the amount
of the final payment that is garnishable by the DOR.
DOR's garnishable amount
As set forth above, the court of appeals held that the DOR
was entitled to garnish 1/4 of the total land contract
purchase price from the final payment because James "has
a property right to one-fourth of the full contract price, or
$85, 425." Prince, 364 Wis.2d 457, ¶20.
Accordingly, the court of appeals allowed the DOR to garnish
$85, 425 from Van De Hey's final payment of $113, 900.
However, contrary to the court of appeals' conclusion, a
garnishor is entitled to garnish only the amount that the
debtor could require be paid to him from the property in the
hands of the garnishee when the garnishment is served.
Collier, 355 Wis.2d 343, ¶32; Morawetz v. Sun Ins.
Office, 96 Wis. 175, 178, 71 N.W. 109 (1897) (explaining
that the garnishor steps into the shoes of the debtor and,
therefore, has no better rights to property in the hands of
the garnishee than the debtor could assert). Wisconsin Stat.
§ 812.18 provides, as is relevant to the garnishment of
Van De Hey:
From the time of service upon the garnishee, the garnishee
shall be liable to the creditor for the property then in the
garnishee's possession or under his or her control
belonging to the debtor or in which the debtor is interested
to the extent of his or her right or interest therein and for
all the garnishee's debts due or to become due to the
debtor . . .
Moreover, well-established Wisconsin precedent provides that
a garnishment action does not give the garnishor any greater
rights in the property held by a third party than the debtor
himself or herself possessed on the date that the garnishment
action was served. Miracle Feeds, Inc. v. Attica Dairy
Farm, 129 Wis.2d 377, 380-81, 385 N.W.2d 208 (Ct. App
1986). In Miracle Feeds, a garnishment action was brought
against Zim's Cheese for milk checks payable to the
debtor, Attica. Id. at 378-79. A bank, to which
Attica also was indebted, intervened in the action, asserting
that Attica had assigned its interest in the milk checks to
the bank in exchange for the bank making loans to Attica and,
therefore, Attica had no interest in the milk checks that
could be garnished. Id. at 379-81.
The court of appeals agreed with the bank. Id. at
379. In explaining the nature of a garnishment action, the
court of appeals said, "[i]n effect, the garnishment was
'an action by [Attica] in [Miracle's] name against
the garnishee, the purpose of which is to subrogate the
plaintiff to the rights of the defendant against the
garnishee.'" Id. at 380-81. (quoting
Commercial Inv. Trust, Inc. v. Wm. Frankfurth H.
Co., 179 Wis. 21, 24, 190 N.W. 1004 (1922)). Because
"Miracle merely stands in Attica's shoes, " and
because Attica had assigned its rights to all milk sale
proceeds to the bank long before Miracle's garnishment,
there was no property of the debtor (Attica) to obtain from
Zim's Cheese. Id. at 381. See also
Morawetz, 96 Wis. at 178 (explaining that garnishment creates
an "equitable levy" on the debtor's property
that is in the hands of the garnishee at the time that the
garnishment action is served).
As set forth above, Prince commenced the instant garnishment
action on February 17, 2012, at which time Van De Hey already
had made two of the payments due under the land contract. The
final payment had not been made and, therefore, the final
payment was the only property still in Van De Hey's hands
at the time that the garnishment action was served.
Therefore, given the foregoing principles, the DOR is
entitled to garnish only James's outstanding share of the
final payment under the land contract. Stated otherwise, if
1/4 of each of the first two payments has been paid to James
or on his behalf, James is entitled to $28, 475 of the final
payment on the land contract, and that is the amount
available for the DOR to garnish. Wis.Stat. § 812.18;
Miracle Feeds, 129 Wis.2d at 381.
It is undisputed that James and the intervenors, as
tenants-in-common, each held an undivided 1/4 interest in the
real estate and each held a 1/4 interest in the proceeds of
the land contract; i.e., at the inception of the land
contract each tenant-in-common was to have received $85, 425
when the third payment of $113, 900 was made. Therefore, part
of the $113, 900 payment that Van De Hey is holding belongs
to James and part belongs to each of the intervenors as the
remaining three tenants-in-common.
Determining the amounts payable to each tenant-in-common from
the final payment due under the land contract requires
factual findings about the amounts that were paid to or on
behalf of James from the first two payments Van De Hey made.
The third-party complaint asserts that the first two payments
due to James were made to M&I Bank on James's behalf.
It is undisputed that, on February 16, 2004, M&I Bank
filed a mortgage against the undivided real estate that the
parties owned as tenants in common. The intervenors assert
that the mortgage was security for debt James incurred
personally. However, the parties who responded to the
third-party complaint asserted that they could not admit or
deny whether James's portions of the first two payments
had been paid to M&I Bank and whether the mortgage arose
from debt that James personally incurred.
If the assertions of the intervenors prove to be factually
correct, James is owed $28, 475 from the final payment, and
it is only $28, 475 that is subject to garnishment by the
DOR. See Miracle Feeds, 129 Wis.2d at 380-81
(explaining that garnishor is entitled to garnish only the
amount of the debtor's property in the hands of the
garnishee when the garnishment action is
served). Because the amounts that were paid to
James, or on his behalf, from the first two payments have not
been conclusively established in the record presented to us,
we conclude that a remand to the circuit court is necessary
for a factual determination of those amounts.
We note that any other result would prejudice the intervenors
by allowing the DOR to garnish a portion of Van De Hey's
final payment that is not owed to James but, rather, is owed
to the intervenors as the remaining three tenants-in-common.
See Gray v. Rollo, 85 U.S. 629, 634 (1873) ("If
a debt is due to A. and B., how can any court compel the
appropriation of it to pay the indebtedness of A. to the
common debtor without committing injustice toward B.?").
In sum, we conclude that the DOR is entitled to garnish only
what James, ...