ADIBI v. PRESTIGIOUS HOMES BY FRANK SADEGHY, No. 95,054.

• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
• Citation: 55 P.3d 465,2002 OK CIV APP 85
• Decision Date: 23 August 2002
• Parties: Dr. Shahriar ADIBI and Mrs. Mojgan Adibi, Plaintiffs/Appellees, v. PRESTIGIOUS HOMES BY FRANK SADEGHY, INC. and Frank Sadeghy, Defendants/Third-Party Plaintiffs, v. The Bank of the West, Third-Party Defendant, v. Pantea Sadeghy, Appellant.
• Docket Number: No. 95,054.

55 P.3d 465
2002 OK CIV APP 85

Dr. Shahriar ADIBI and Mrs. Mojgan Adibi, Plaintiffs/Appellees,
v.
PRESTIGIOUS HOMES BY FRANK SADEGHY, INC. and Frank Sadeghy, Defendants/Third-Party Plaintiffs,
v.
The Bank of the West, Third-Party Defendant,
v.
Pantea Sadeghy, Appellant

No. 95,054.

Court of Civil Appeals of Oklahoma, Division No. 1.

August 23, 2002.

George M. Makohin, Oklahoma City, OK, for Plaintiffs/Appellees.

David N. Livingston, Oklahoma City, OK, for Appellant.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 1.

55 P.3d 466

Opinion by KENNETH L. BUETTNER, Judge

¶ 1 Plaintiffs Shahriar and Mojgan Adibi (Adibis) recovered a judgment against Frank Sadeghy and Prestigious Homes by Frank Sadeghy, Inc. (Sadeghy) for more than $100,000. As judgment creditors, they sought special execution and levied on personal property of Sadeghy and his corporation located at Sadeghy's home in Edmond, Oklahoma. Pantea Sadeghy (Mrs. Sadeghy), not a party to the lawsuit, claimed ownership of the seized property and requested its return. The District Court denied her motions for turnover and motion for new trial. We affirm.

¶ 2 Mrs. Sadeghy filed her Claim of Ownership and Motion of Pantea Sadeghy for Turnover Order to Oklahoma County Sheriff January 7, 2000. She alleged that the house in Edmond was her personal residence and that although she and Sadeghy were married, they had separated in February 1999. She further alleged that the Special Execution was issued by the court clerk, not the court, and that the court did not authorize a forced entry into her home while she was away. She averred that when she returned home, she found her burglar alarm activated and that a large amount of her personal belongings had been removed. She also claimed that items of jewelry, not included on the inventory, were missing. She finally stated that all of the property taken was her personal property and seized illegally because she was not the judgment debtor and that the sheriff did not have authorization to break into her home and seize her property.

¶ 3 Her motion was verified. Exhibits to the motion were the inventory of property seized, a copy of the Special Execution to the sheriff, and a car registration for a 1996 Chevrolet Camaro titled in Sadeghy's name and showing the Edmond address. The only specific relief requested was a return of the seized items.

¶ 4 The Adibis responded that the personal property levied upon was not her separate property and that it was lawfully seized pursuant to a lawfully issued execution. They also stated that Mrs. Sadeghy's claim of ownership was insufficient both as a matter of law and fact, and that she failed to comply with District Court Rule 4 by failing to submit a brief in support of her motion. They stated that Mrs. Sadeghy did not state or otherwise show how the property could be her separate property and that mere absence of the husband from the home did not transform marital property into separate property. They argued that she had failed to overcome a presumption that marital property was joint property. They pointed out the consequence of unlawful transfer of property to avoid creditors if in fact the property had somehow been transferred to her as separate property.

¶ 5 The Adibis also asserted that Mrs. Sadeghy failed to carry her burden as a matter of fact. They attached many exhibits

55 P.3d 467

including a record showing Sadeghy as the sole record owner of the house; loan documents showing that he had used some of the listed household items as collateral; a copy of the 1999/2000 telephone book listing Sadeghy, but not wife Pantea, as the resident at the Edmond house; automobile titles for two cars listed in Sadeghy's name at the Edmond address as late as January 2000; and Sadeghy's answers to interrogatories in which he stated that he had not transferred any property to his wife

¶ 6 Finally, the Adibis argued the seizure was lawful citing Oklahoma law, 12 O.S.1991 § 731 et seq., which does not require a "break in" order issued by the court.¹

¶ 7 In her reply, Mrs. Sadeghy stated that special executions only issue for property which has a lien or mortgage; that she had a constitutional right to be secure in her home; and that the sheriff did not have the right to break into her home and seize property without a warrant.

¶ 8 On January 20, 2000, the District Court heard argument of counsel for the Adibis and Mrs. Sadeghy, reviewed the pleadings and the evidence submitted, and denied Mrs. Sadeghy's motion. It then authorized the sheriff to proceed with the sale.²

¶ 9 Mrs. Sadeghy filed a Motion for New Trial January 31, 2000 stating: 1) the property was unlawfully seized in violation of the Fourth Amendment of the United States Constitution; and 2) the court improperly granted summary judgment against her and refused to hold an evidentiary hearing.

¶ 10 The Adibis responded that Mrs. Sadeghy failed to demonstrate entitlement to a new trial pursuant to 12 O.S.1991 § 651; and that the property was now subject to the jurisdiction of the bankruptcy court.³

¶ 11 In its order denying the motion for new trial, the trial court reviewed the pleadings, found that oral argument was not necessary, and answered a specific question posed by Mrs. Sadeghy, viz., the court reaffirmed its original finding that Mrs. Sadeghy had failed to meet her burden of proof with respect to her claim of ownership of the property.

¶ 12 On appeal, Mrs. Sadeghy asserts that 1) every seizure made without a search warrant is unlawful and unreasonable under the Fourth Amendment to the United States Constitution; 2) the seizure of personal property was unlawful because the creditor and sheriff did not have a search warrant or court order, and 3) the trial court erred in denying her an evidentiary hearing before denying her motion.

¶ 13 First, with respect to the procedural question, district courts are authorized to decide motions without hearings. 12 O.S. Supp.1993 Ch.2, App.1, District Court Rule 4(h). Pursuant to District Court Rule 4(c), motions raising fact issues shall be verified by a person having knowledge of the facts. In the case at bar, Mrs. Sadeghy attached evidentiary documents to her motion, and the Adibis attached...