Billigmeier v. County of Hennepin

428 N.W.2d 79, 1988 Minn. LEXIS 196, 1988 WL 85000
CourtSupreme Court of Minnesota
DecidedAugust 19, 1988
DocketC4-87-848
StatusPublished
Cited by17 cases

This text of 428 N.W.2d 79 (Billigmeier v. County of Hennepin) is published on Counsel Stack Legal Research, covering Supreme Court of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Billigmeier v. County of Hennepin, 428 N.W.2d 79, 1988 Minn. LEXIS 196, 1988 WL 85000 (Mich. 1988).

Opinions

OPINION

KELLEY, Justice.

Pursuant to a writ of execution following entry of judgment, the Hennepin County Sheriff made certain levies on properties alleged to be owned by the judgment debtors. Those debtors asserted exemption claims to certain of the properties levied upon. Following the levies, but before the validity of the exemption claims were judicially determined, the judgment debtors and creditor stipulated to a settlement of the judgment debt. The terms of the settlement placed the obligation on the judgment debtors to pay “any and all” sheriff’s fees. The sheriff claims entitlement to statutory fees computed on the amount of the post judgment settlement. The judgment debtors disagree. They claim the sheriff is entitled to claim fees computed on the value of nonexempt property levied on and turned over to the judgment creditor. The judgment debtors . commenced this declaratory judgment action and moved for summary judgment.1 The trial court upheld the claim of the sheriff. In reversing, the court of appeals limited the reasonable sheriffs fees to the applicable percentage of the judgment debtors’ nonexempt assets actually collected by the sheriff and turned over to the judgment creditors. Billigmeier v. Hennepin County, 415 N.W.2d 423 (Minn.App.1987). We affirm.

As the result of two lawsuits, John L. King obtained judgments against certain debtors in the amount of $600,133.21. The Hennepin County District Court issued a writ of execution which was forwarded to the Hennepin County Sheriff. At the direction of the judgment creditor’s attorney, the Hennepin County Sheriff made levies on accounts in various financial institutions. The accounts levied upon contained insufficient amounts to satisfy the judgment. Therefore, again at the direction of the attorney for the judgment creditor, the sheriff levied upon four real estate parcels. The debtors subsequently asserted that certain funds in the accounts were exempt from levy on execution, and that all of the real estate was exempt under the homestead exemption laws. Before the district court could determine the validity of their exemption claims, and before an appeal of the underlying judgment which they had commenced to the Minnesota Court of Appeals could be perfected, the judgment debtors stipulated to a settlement agreement with the creditor. The stipulation obligated the judgment debtors to pay all statutory sheriff’s fees due the sheriff. The sheriff claims a collection fee computed on the settlement agreement value which has been stipulated by the parties to be $365,000. So computed, his fee would be $14,600.

Following execution of the settlement agreement, the judgment creditor directed the sheriff to return all property levied upon to the debtors. The sheriff did so with the exception of retaining the $14,600, [81]*81which he claimed as a collection fee, from moneys in an account in Norwest Bank, Midland, N.A. The $14,600 was calculated by taking four percent of the agreed upon present value of the settlement agreement. The judgment debtors dispute that the sheriff properly computed his fees. They contend that pursuant to Minn.Stat. § 357.09 (1986) the sheriff is entitled to fees calculated on the value of nonexempt assets actually collected by the sheriff and turned over by him to the judgment creditors. Because the sheriff actually collected total nonexempt assets of $49,671.83, the debtors claim his levy fee, computed at four percent, is limited to $1,986.87.

The statutes governing fees to which a sheriff is entitled following an execution levy is Minn.Stat. § 357.09 (1986).2 To resolve the issue raised by the conflicting claims of the parties, we must decide whether the statutory words “collection on execution after levy” limit the sheriff’s entitlement to fees to four percent of the value of property actually seized and delivered to the judgment creditors, or whether they permit the sheriff to collect as his fee four percent of the agreed present value of the settlement agreement.

No Minnesota case addresses that specific issue. Hennepin County and its sheriff rely on four attorney general opinions issued between 1915 and 1944 — none of which are precisely on point. In the first, issued in 1915, the attorney general concluded that when a sheriff had made a valid levy on nonexempt real estate, and, thereafter, but before sale, the debtor and creditor settled, the sheriff was entitled to a fee computed on the amount actually received by the judgment creditor. Op. Att’y Gen. 148 (Jan. 30,1915). Three years later the attorney general concluded similarly on substantially identical facts. Op. Att’y Gen. 145 (Dec. 14, 1918). In 1923 the attorney general opined that a sheriff was entitled to a fee computed on the market value of the land levied upon when, at the execution sale, the creditor made the sole bid on the property at a price substantially less than market value. Op. Att’y Gen. 390-C-ll (May 23, 1923). In later rulings issued in 1927 and 1944 the attorney general adhered to his 1923 ruling when the existing circumstances were similar. See, Op. Att’y Gen. 390-C-ll (Apr. 19, 1927); Op. Att’y Gen. 224 (Oct. 30, 1944). Although the appellants acknowledge that those opinions of the attorney general are not binding on this court, in support of their contention they invoke the historical practice by which this court has traditionally afforded careful consideration and weight to such rulings. See, e.g., Governmental Research Bureau, Inc. v. St. Louis County, 258 Minn. 350, 357, 104 N.W.2d 411, 416 (1960); Mankato Citizens Tel. Co. v. Comm’r of Taxation, 275 Minn. 107, 112, 145 N.W.2d 313, 317 (1966).

In reply, respondents argue that none of the attorney general letter rulings relied upon by the appellants involve identical or substantially similar fact situations to that existing in the instant case. To the extent the letter rulings might bear upon the issue, respondents further contend that reexamination of the foundation for the rulings (in the light of factors which have evolved in the more than four decades since the last letter ruling was issued), demonstrates the emergence of a modern policy or rationale explicating that the statutory purpose is to limit the sheriff’s compensation to a fee for services performed and for risks assumed in collecting and preserving the property. Finally, respondents assert [82]*82that since the attorney general letter rulings rely upon authority from foreign jurisdictions construing statutes dissimilar from Minn.Stat. § 357.09, subd. 1(3), this court need not afford to them the traditional deference, but instead should examine anew the issue by employing the policy and rationale utilized by the courts of other jurisdictions when interpreting statutes similar to ours by probing legislative intent.

We agree with respondents’ assertion that the facts in each of the attorney general letter rulings are sufficiently dissimilar to those in the instant case as to afford little direct authority supporting the appellant’s position. So far as ascertainable, the predicate fact generating the inquiry addressed in each letter was a valid sheriff’s levy upon nonexempt property.

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Billigmeier v. County of Hennepin
428 N.W.2d 79 (Supreme Court of Minnesota, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
428 N.W.2d 79, 1988 Minn. LEXIS 196, 1988 WL 85000, Counsel Stack Legal Research, https://law.counselstack.com/opinion/billigmeier-v-county-of-hennepin-minn-1988.