Adibi v. Prestigious Homes By Frank Sadeghy, Inc.

2002 OK CIV APP 85, 55 P.3d 465, 73 O.B.A.J. 2609, 2002 Okla. Civ. App. LEXIS 70, 2002 WL 31116077

• Court: Court of Civil Appeals of Oklahoma
• Decided: August 23, 2002
• Docket: No. 95,054
• Status: Published

Opinions

Opinion by

KENNETH L. BUETTNER, Judge:

11 Plaintiffs Shabriar and Mojgan Adibi (Adibis) recovered a judgment against Frank Sadeghy and Prestigious Homes by Frank Sadeghy, Inc. (SGadeghy) 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.

T2 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 foreed 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.

13 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.

T 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.

T5 The Adibis also asserted that Mrs. Sadeghy failed to carry her burden as a matter of fact. They attached many exhibits 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 Sade-ghy, 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 Sade-ghy's answers to interrogatories in which he stated that he had not transferred any property to his wife.

T6 Finally, the Adibis argued the seizure was lawful citing Oklahoma law, 12 0.8.1991 § 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.

T8 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. Sa-deghy's motion. It then authorized the sheriff to proceed with the sale.²

T9 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.

11 10 The Adibis responded that Mrs. Sade-ghy failed to demonstrate entitlement to a new trial pursuant to 12 0.8.1991 § 651; and that the property was now subject to the jurisdiction of the bankruptey courts.³

111 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.

1 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 8) the trial court erred in denying her an evidentiary hearing before denying her motion.

118 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(bh). 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 evidentiary documents in their response to the motion. There is no record presented in this Court that Mrs. Sadeghy asked to present more evidence pri- or to or at the hearing on the motion. The District Court, which heard argument of the attorneys and reviewed the pleadings and evidence attached, did not err in its method of deciding the motion.

114 The District Court issued its order January 20, 2000, denying Mrs. Sadeghy's turnover motion, and authorizing sale of the seized property. Mrs. Sadeghy filed her Motion for New Trial January 81, 2000. A hearing on that motion was held February 24, 2000, and the Order denying the motion was filed June 30, 2000. The Order included the statement that Mrs. Sadeghy failed to meet her burden of proof with respect to her original motion claiming ownership of the seized property.

115 Mrs. Sadeghy's two substantive propositions on appeal solely address whether the "search" and seizure violated the warrant requirement of the Fourth Amendment to the United States Constitution. She did not argue that the District Court's ruling, that she failed to meet her burden of proof with respect to ownership of the seized property, was erroneous. Assuming, as we must, that the District Court was correct, then Mrs. Sadeghy's effort to regain possession of property that is not hers must fail.

116 Absent ownership of the seized property, Mrs. Sadeghy's issues concerning Fourth Amendment violations are academic. We decline to answer questions disconnected from the granting of relief or from which no practical result will follow. Town of Covington v. Coberly, 1929 OK 147, 275 P. 1064. In Pryor v. Mid-West Investigations & Process Serving, Inc., 2000 OK CIV APP 22, ¶10, 999 P.2d 452, 455, this Court stated: "Plaintiffs final allegation is also without merit. Whether other stockholders in a corporation may have a cause of action against a corporate officer for allowing a default judgment to be taken against the corporation is an interesting, but purely academic question."

117 Because the only relief requested by Mrs. Sadeghy was return of the seized property, we need not address the issue whether the Sheriff's action in "forcibly" entering the house in which Mrs. Sadeghy was living was wrongful. There are causes of action for wrongful execution, Farris v. Castor, 1940 OK 7, 99 P.2d 900, and violation of civil rights. But those kinds of claims were not before the court. Mrs. Sadeghy has cited no authority that entitles her to the return of her husband's property even if the Sheriff wrongfully entered the house in which she was living. This is because Mrs. Sadeghy was not aggrieved by the seizure of property that was not hers.⁴ The District Court correctly denied the only relief requested, return of seized property, after finding that Mrs. Sadeghy did not carry her burden of proof that the seized property was hers.

AFFIRMED.

JOPLIN, V.C.J., concurs; JONES, J., dissents with separate opinion.

1 . 12 0.$.2001 § 731 provides: Executions shall be deemed process of the court, and shall be issued by the clerk, and directed to the sheriff of the county. They may be directed to different counties at the same time.

2 . On January 25, 2000, the lawyer for the Sade-ghys filed a notice of bankruptcy showing that Frank Sadeghy had filed for protection under Chapter 7 and advising that the actions by creditors were stayed, effectively preventing the sale of the household goods that Mrs. Sadeghy was swearing were hers.

3 . The Adibis also alleged fraudulent pleadings filed by the Sadeghys and breaches of the Rules of Professional Conduct by their attorney.

4 . In a similar vein, a person who cannot establish a proprietary interest in money forfeited lacks standing to challenge the forfeiture. United States of America v. $3,799.00 in United States Currency, 684 F.2d 674 (10th Cir.1982). While the dissent refers to Mrs. Sadeghy's possessory interest in the property, such interest is never described nor did the trial court recognize any possessory interest in her husband's property.