Date: 04-23-2002

Case Style: Jones, Givens, Gotcher, & Bogan, P.C. v. Berger

Case Number: 2002 OK 31

Judge: Boudreau

Court: Supreme Court of Oklahoma

Plaintiff's Attorney: Darven Brown, Ginger Brady, Tulsa, Oklahoma, for Appellees, Ted Parks, L.L.C. and Ted Parks Tracy Robinett, Tulsa, Oklahoma, for Appellee, David Gordon White

Defendant's Attorney: Debbra Gottschalk, Tulsa, Oklahoma, for the Defendant/Appellant, JIm Berger

Description: 0 Jones, Givens, Gotcher & Bogan, P.C. had a claim against Jim and Tana Berger (Ms. Parks). Jones, Givens, Gotcher & Bogan, P.C. settled its claim against Ms. Parks and took a default judgment against Mr. Berger. The judgment was later assigned and sheriff's sale proceedings began against the Tulsa property owned by Jim Berger in an effort to satisfy the default judgment and claims of other creditors. Jim Berger asserted homestead exemption status for the Tulsa property shortly after his 1998 divorce from Tana Parks Berger. His creditors took issue with the homestead exemption, asserting that because the Tulsa property was not Berger's principal residence he was not entitled to the exemption. The trial court held an evidentiary hearing to determine if sheriff's sale proceedings should continue. The trial court then ordered confirmation of the sheriff's sale based on its conclusion that the home was not Berger's principal residence. Berger then moved for a new trial, which the trial court denied. Because Berger established at trial that the property in question was impressed with the homestead exemption in 1998, the court should have determined at trial whether Berger abandoned the homestead and not whether it was currently his principal residence. As a result, the trial court erred as a matter of law when it determined only the question of principal residence, instead of whether the Tulsa homestead was abandoned by Berger. Therefore, the case is reversed and remanded for further proceedings to determine whether Jim Berger abandoned the Tulsa homestead.

Outcome: ¶13 We find that the trial court abused its discretion when it failed to sustain Berger's motion for new trial. We reverse and remand this matter to the trial court with directions to conduct a new evidentiary hearing to determine whether creditors can establish by clear and convincing evidence that Berger abandoned the property as his homestead.

Plaintiff's Experts: Unavailable

Defendant's Experts: Unavailable

Comments: None