This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ' 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C7-96-382

Crawford Door Sales Company,
Respondent,

vs.

Michael King, d/b/a Mark Development
and Mark Properties,
Appellant.

Filed August 6, 1996
Affirmed
Huspeni, Judge

Hennepin County District Court
File No. 886064

Michael H. Pink, Best & Flanagan, 4000 First Bank Place, 601 Second Ave. S., Minneapolis, MN 55402 (for Appellant)

Michael J. Orme, Brenner & Glassman, Ltd., BLN Office Park, Suite 170, 2001 Killebrew Dr., Minneapolis, MN 55425 (for Respondent)

Considered and decided by Huspeni, Presiding Judge, Toussaint, Chief Judge, and Foley, Judge.*

U N P U B L I S H E D O P I N I O N

HUSPENI, Judge

The district court concluded that respondent has a valid and enforceable judgment lien against appellant's property because the homestead exemption on the property was lost when appellant resided elsewhere for more than six months and failed to file a notice with the county recorder. Because the statute mandates that an exemption be preserved by filing notice, we conclude that appellant's homestead exemption was lost, and we affirm.

FACTS

Respondent Crawford Door Sales Company (Crawford) obtained a judgment against appellant Michael King in 1986; the judgment was docketed in 1988. In 1987, King purchased a home on contract for deed. The home was destroyed by fire in 1991, during a two-week period when King was hospitalized for depression. The home was not occupied for at least the next three years. No notice preserving the homestead exemption was filed between the time the home ceased to be occupied in 1991 and King's filing for bankruptcy in 1994.

When King applied for a discharge of all judgments against him due to his discharge in bankruptcy, Crawford objected on the ground that it had a valid lien against King's property because King had ceased to occupy it for more than six months and had not filed a notice with the county recorder. Judgment was entered for Crawford. King appeals on the ground that he falls under an exception to the statutory filing requirement. [1]

D E C I S I O N

The construction of a statute is clearly a question of law and thus fully reviewable by an appellate court. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985).

Three statutes are relevant here. Minn. Stat. ' 548.09, subd. 1 (1994), provides that from the time a judgment is docketed it is

a lien, in the amount unpaid, upon all real property in the county then or thereafter owned by the judgment debtor * * * for ten years.

Id. Minn. Stat. ' 510.01 (1994) provides that a debtor's homestead is "exempt from seizure or sale under legal process on account of any debt not lawfully charged thereon in writing." Minn. Stat. ' 510.07 (1994) provides that:

If the owner shall cease to occupy such homestead for more than six consecutive months the owner shall be deemed to have abandoned the same unless, within such period, the owner shall file with the county recorder of the county in which it is situated a notice, executed, witnessed, and acknowledged as in the case of a deed, describing the premises and claiming the same as the owner's homestead.

It is undisputed that King necessarily ceased to occupy his home as of May 9, 1991, when it was destroyed by fire, and that he did not file a notice within six months or at any time before filing for bankruptcy in May 1994.

Crawford argues that his judgment lien attached on May 9, 1991, when the six-month period expired and King was deemed to have abandoned the property pursuant to Minn. Stat. ' 510.07. King argues that because his absence from the home was the result of the fire, the filing requirement of Minn. Stat. ' 510.07 does not apply. This court, however, has determined that fire does not waive the filing requirement.

[W]e find that when the appellant ceased to occupy his home for more than six months and failed to file a notice claiming the premises as homestead property, the homestead status of the property was lost. * * * [T]he filing requirement is not waived simply because the homeowner's absence is the result of a casualty.

Joy v. Cooperative Oil Ass'n, 360 N.W.2d 363, 366 (Minn. App. 1984) (appellant who failed to file statutory notice while absent from property for more than six consecutive months due to fire lost homestead exemption), review denied (Minn. Mar. 6, 1985). King was actually absent and failed to file a notice for three years.

The holding in Joy is based on two earlier cases, Muscala v. Wirtjes, 310 N.W.2d 696 (Minn. 1981), and First Nat'l Bank of Mankato v. Wilson, 234 Minn. 160, 47 N.W.2d 764 (Minn. 1951). Muscala explicitly rejects the view that the intent of the owner is the dispositive or even a relevant factor.

[T]he 6-month vacancy rule means that the homestead exemption is lost after 6 months unless the person has filed, no matter what the person's intention.

Muscala, 310 N.W.2d at 698. Wilson provides a strict construction of the filing requirement.

[T]he legislature intended that any removal from the premises for more than six months should be held, considered, adjudged, construed, or treated as if it were an abandonment unless the one method (filing of notice) specified in the statute for preserving the homestead exemption be followed.

Wilson, 234 Minn. at 164, 47 N.W.2d at 767.

King argues that an exception should be made to the filing requirement in his case. However, even if we were to ignore the line of cases adopting a strict interpretation of the statute and contemplate an exception, we could not find an exception under the facts of this case. King left the hospital four days after his home burned; there is no evidence of any disability that would have prevented him from filing during the remainder of the statutory six-month period. The cases King cites to support his view that an exception should be made are clearly distinguishable. Millett v. Pearson, 143 Minn. 187, 173 N.W. 411 (1919), held that a person in jail and unable to change residence did not lose the homestead exemption; Clark v. Dewey, 71 Minn. 108, 73 N.W. 639 (1898), held that a temporary absence does not constitute an abandonment. King's circumstances are not comparable to either Millett or Clark: he was not imprisoned or otherwise involuntarily confined, and his absence lasted for some three years. While we are not unsympathetic to the hardships endured by King these past several years, we cannot conclude that he is covered by either of the very limited exceptions to Minn. Stat. ' 510.07.

Because King failed to file the requisite notice with the county recorder, as mandated by Minn. Stat. ' 510.07, he lost his homestead exemption. The district court correctly determined that Crawford's judgment lien on King's property is valid and enforceable.

Affirmed.


Footnotes

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, ' 10.

[1]King also argued that collateral estoppel precluded Crawford from raising the exemption issue because that issue had been resolved in the bankruptcy proceedings. Because counsel for King conceded there is no collateral estoppel issue at oral argument, we do not address the issue here.