809 F. Supp. 2d 742
N.D. Ohio2011Background
- Hicks seeks writs of execution on Cadle to satisfy a Colorado judgment; two praecipes at issue: Feb 11, 2011 (Doc. 60) and Mar 30, 2011 (Doc. 83); Feb writs served but produced no assets; March writs held in abeyance; a March 10 praecipe also held in abeyance.
- Cadle challenges reach of assets, arguing stocks, LLC/LP interests, and vague writs; asserts state-law limitations and lack of notice under Ohio law.
- Court analyzes Federal Rule 69 and Ohio R.C. 2329.091 notice requirements; Hicks did not provide statutorily compliant notice; notices not served with required content (hearing notice, exemption attachment, hearing request form, etc.).
- Court notes Cadle received electronic and counsel-service notice and has challenged the writs on the merits; no assets were seized; Cadle has had opportunity to be heard via motions to quash.
- Court grants in part and denies in part: due process notice insufficient but no prejudice; orders re-filing with proper Ohio notice for current writs; allows charging orders for Cadle’s LLC/LP interests rather than direct levy; handles vast issues about stock, LLC/LP interests, and vagueness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether deficient notice violates due process | Hicks argues minimal prejudice; statutory notice not required for this phase. | Cadle contends lack of notice violated due process and warrants quashing. | Notice flawed but no prejudice; due process not violated in these facts. |
| Whether lack of notice prejudiced Cadle | Hicks asserts Cadle suffered no prejudice since no funds were seized and Cadle could challenge merits. | Cadle says absence of notice prevented hearing rights. | No prejudice found; harmless error under current record. |
| Whether stocks are subject to execution under R.C. 2329.01 | Stocks and related assets are within lands and chattels subject to levy. | Stocks are not lands, tenements, goods or chattels; not subject to execution. | Stocks may be executed; not meritorious to quash writs on this ground. |
| Whether membership interests in LLCs/LPs can be levied directly | Cadle’s interests should be reachable by writ; risks asset concealment. | Charging orders required; interests not directly leviable. | Grants only charging orders under R.C. §§ 1705.19, 1782.41; direct levy not permitted. |
| Whether writs are vague or defective | Writs identify Cadle and assets; exact items not specified but sufficient. | Writs overly vague about property to be seized. | Vagueness non-meritorious; warrants proceed with proper notice and further steps. |
Key Cases Cited
- Revis v. Meldrum, 489 F.3d 273 (6th Cir.2007) (due process in execution; real property seizure; notice required for real property)
- Roach v. Roach, 164 Ohio St. 587 (Ohio 1956) (strict construction of execution statutes; pre-amendment notice context)
- City of Columbus v. Capital Data Sys., Inc., 186 Ohio App.3d 775, 930 N.E.2d 828 (Ohio Ct.App.2010) (harmless error when no prejudice and hearing provided)
- Endicott-Johnson Corp. v. Encyclopedia Press, Inc., 266 U.S. 285 (Supreme Court 1924) (due process in absence of statutory notice; real property vs. tangible property)
- Herring v. Keasler, 150 N.C.App. 598, 563 S.E.2d 614 (N.C.App.2002) (charging order for membership interests in LLCs not directly levied)
- Evans v. Galardi, 16 Cal.3d 300, 128 Cal.Rptr. 25, 546 P.2d 313 (Cal. 1976) (charging order concept for partnership interests)