Hicks v. Cadle Co.

809 F. Supp. 2d 742, 2011 U.S. Dist. LEXIS 93031, 2011 WL 3652439
CourtDistrict Court, N.D. Ohio
DecidedAugust 19, 2011
DocketCase No. 1:09mc07
StatusPublished
Cited by1 cases

This text of 809 F. Supp. 2d 742 (Hicks v. Cadle Co.) is published on Counsel Stack Legal Research, covering District Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hicks v. Cadle Co., 809 F. Supp. 2d 742, 2011 U.S. Dist. LEXIS 93031, 2011 WL 3652439 (N.D. Ohio 2011).

Opinion

ORDER [Resolving Docs. 71, 84]

SARA LIOI, District Judge.

This matter comes before the Court on the motions (Docs. 71, 84) of Defendant Daniel Cadle (“Cadle”), the judgment debtor, to quash writs of execution issued by Plaintiff Kerry Hicks (“Hicks”) as the judgment creditor of a judgment entered by the United States District Court for the District of Colorado and certified in this Court. (Doc. 1.)

I. Background

Hicks has filed numerous praecipes for writs of execution in this matter in order to collect on the judgment he received in the District Court in Colorado. (Docs. 59, 60, 82, 83.) The two praecipes that are the subject of Cadle’s motions to quash are those filed February 11, 2011 (Doc. 60) and March 30, 2011 (Doc. 83). The writs identified in the February 11, 2011 praecipe have been served, and each writ has been fruitless and has produced none of Cadle’s assets. The Court has withheld the March 30, 2011 praecipe from service pending its ruling on the motions to quash and attendant briefing from the parties. See Doc. 87. The Court also withheld a praecipe filed by Hicks on March 10, 2011, which had not yet resulted in the service of writs of execution, until it could rule on this issue, though Cadle did not challenge that praecipe. Id.

Cadle challenged the February 11 and March 30 praecipes on the basis of the assets they sought to reach. The first praecipe identifies the property to be seized as “the goods, chattels, lands and tenements in your district belonging to [744]*744Daniel C. Cadle,” and specifies in the Marshal’s form that the property sought is “[s]tock and other assets.” (Docs. 60, 60-2.) The second praecipe provided a much longer definition of the assets included:

(a) all shares, interests, participations or other equivalents (however designated) of capital stock of any corporation, (b) all equivalent ownership interests in any limited partnerships, general partnerships, limited liability companies, limited liability partnerships, joint stock companies, joint ventures, associations, companies, trusts, trust companies, land trusts, business trusts or other organizations (other than corporations), whether or not legal entities, including partnership interests and membership interests, (c) all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing, and (d) all bonds, certificates, powers, agreements and other instruments or documents evidencing, representing, or in any way conferring rights in respect of any of the foregoing.

(Doc. 83-2 at 2.)

Cadle’s two motions are nearly identical despite this expanded definition provided by Hicks in the March 30 praecipe. In both motions, Cadle focuses upon the argument that the stocks sought by Hicks are not reachable under a writ of execution and are also pledged as security for promissory notes Cadle has given other creditors. He further contends that his interests in limited liability companies and limited partnerships are not stock and are not subject to execution under Ohio law, and he argues that the writs are too vague to be executed by the United States Marshal.

In both motions, Cadle makes passing reference to the fact that the writs were not served in accordance with Ohio law because they did not include proper notice to Cadle both of his right to a hearing and his right to identify property that is exempt from execution. The Court has asked the parties to brief this issue more thoroughly (Doc. 87) and has received both the parties’ initial briefs and response briefs.

II. Legal issues

The Federal Rules of Civil Procedure provide that money judgments are enforced by a writ of execution, the process for which is governed by the procedure of the state where the court is located, except to the extent that a federal statute applies, in which case the federal statute governs. Fed.R.Civ.P. 69(a)(1). Ohio law provides for the issuance of a writ of execution as follows:

When a judgment creditor files a praecipe for a writ of execution with a clerk of [court] [...], the clerk shall issue a writ of execution to the levying officer and cause a notice and a hearing request form to be served upon the judgment debtor. The court, in accordance with division (E) of this section, shall appoint a levying officer who shall immediately and simultaneously execute the writ of execution and serve the notice and the hearing request form upon the judgment debtor.

R.C. § 2329.091(A). The statute then sets forth the substance of the notice and states that “[t]he notice to the judgment debtor shall be in substantially [the same] form.” R.C. § 2329.091(B)(1). In addition to the statutory language, the notice must include an attachment that provides the substance of R.C. § 2329.66(A), the statute governing the exemption of property from execution. It must also provide a hearing request form and a self-addressed envelope, postage paid, for the return of that form. Under R.C. § 2329.091(D), a judgment debtor is entitled to a hearing if he returns the [745]*745hearing request form within the period set forth in the statute.

The record reflects that Hicks provided none of this to Cadle when he had the writs of execution served. The Court is then left with the question of whether the failure to provide notice that would comply with the statutory requirements creates an issue of due process and, if so, whether such issues are or may be overcome by a lack of prejudice to the judgment debtor, in this case Cadle.

III. Analysis

The Court will first consider the question of whether Cadle’s due process rights under the Fourteenth Amendment were violated by the allegedly deficient notice provided by Hicks. It will then take up the question of which property is reachable under the execution statute.

A. Notice

1. Cadle’s argument for deficiency of notice

Having set forth the statutory requirements for notice under Ohio law as well as the history of the revisions of the execution statute, Cadle asserts that Hicks’s notice of the service of the writs of execution was deficient, and provides several cases in support of that argument. He begins with a history of the case law that led to the inclusion of a notice requirement in the execution statute. See Hutchinson v. Cox, 784 F.Supp. 1389 (S.D.Ohio 1992); Clay v. Fisher, 584 F.Supp. 730 (S.D.Ohio 1984). Both opinions held that, without a notice requirement, the execution statute in Ohio was unconstitutional because it provided no protection of judgment debtors’ due process rights. Both cases involved factual scenarios in which a seizure of the judgment debtor’s property had occurred.

In arriving at the necessity of a notice requirement, the courts in both Hutchinson and Clay relied upon the Supreme Court’s decision in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). In Mathews,

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Cite This Page — Counsel Stack

Bluebook (online)
809 F. Supp. 2d 742, 2011 U.S. Dist. LEXIS 93031, 2011 WL 3652439, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hicks-v-cadle-co-ohnd-2011.