Hicks v. Cadle Company et al

Filing 125

Order: Cadle's motion is granted in part and denied in part. Cadle's argument that his due process rights have been violated and that this forms a basis for quashing Hicks's writs is without merit, and the motions are denied in this regard. While notice was not statutorily sufficient, Cadle was not prejudiced thereby, and his motions to quash the writs have been considered by this Court prior to any seizure of his property. That being said, Hicks is once again instructed th at he should follow the notice provisions under Ohio law from henceforward, and that he must re-file with proper notice the praecipes currently being held in abeyance by the Court before the Clerk of Court issues the related writs. (Docs. 82 , 83 . ) Cadle is incorrect that his stocks cannot be levied upon by means of a writ of execution. He is further incorrect that the writs are overly vague. To the extent that his assets may have been pledged to others, this is an issue that must be resolve d after the property has been seized, and does not suffice as a basis for quashing the writs at issue here. These arguments are without merit and the motions are denied in these respects. Cadle's motion is granted with respect to his arguments t hat his membership in limited liability companies and his interest in limited partnerships may not be levied upon directly. Hicks may only proceed against those assets by means of a judicial charging order pursuant to R.C. Sections 1705.19 1782.41. (Related Doc # 71 , 84 ). Judge Sara Lioi on 8/19/2011.(P,J)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
KERRY R. HICKS,
Plaintiff,
vs.
THE CADLE COMPANY, et al.,
Defendant.

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CASE NO. 1:09mc07

JUDGE SARA LIOI

ORDER
[Resolving Docs. 71, 84]

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 Daniel 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.
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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 hearing 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.

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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. 1339 (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 (1976).
In Mathews, the Supreme Court held that the specific process due was the sum of the
consideration of three factors, namely the private interest affected by the official actions; the risk
that an individual would be erroneously deprived of his rights or interests and the probable value
of additional safeguards; and finally the government’s interest, both in terms of the function it

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seeks to perform because of which due process is an issue, and in terms of the administrative
burden created by additional process. Mathews, 424 U.S. at 334-35.
Having completed the balancing test, the courts in Hutchinson and Clay
concluded that the interest of the individual was great and the burden on the government was
minimal in comparison. In 1994, Ohio amended its statute to include a notice requirement, as set
forth above. The statute gives no indication of proper procedure should a creditor fail to comply
with the notice requirement.
Cadle suggests that a sort of “strict liability” approach be taken by citing the Ohio
Supreme Court’s decision in Roach v. Roach, 164 Ohio St. 587 (1956), a case involving child
support payments as part of a divorce decree. Roach, 164 Ohio St. at 587. The court was faced
with the question of whether an order for payments of child support over which the trial court
retains jurisdiction “must be reduced to a lump-sum judgment as to unpaid and delinquent
installments before an execution may be lawfully levied thereunder.” Id. at 590. Specifically, the
court was considering whether the order for installment payments in the case before it was a final
judgment upon which an execution could issue. Id.
The court quoted the relevant portion of the statute in effect at the time, R.C. §
2329.09, which stated that
[t]he writ of execution against the property of a judgment debtor issuing from a
court of record shall command the officer to whom it is directed, that of the goods
and chattels of the debtor he cause to be made the money specified in the writ
[…]. The exact amount of the debt, damages and costs for which the judgment is
entered, shall be indorsed on the execution.
Roach, 164 Ohio St. at 590. It then commented that
[t]he provisions of the execution statute must be strictly construed and followed,
and a decree for the payment of money in installments, as differentiated from a
lump-sum decree or judgment, requires a factual finding as to the amount still due
or owing or at least a mathematical calculation of the amount due at any particular
time.
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Roach, 164 Ohio St. at 590-91.
Cadle quotes the Roach decision for the limited proposition that an execution
statute must be “strictly construed and followed.” Roach, 164 Ohio St. at 590. While this
pronouncement by the Ohio Supreme Court appeared in the Roach decision, the decision
occurred prior to the revision of the statute to include a notice provision. No question of notice
was before the court, nor does discussion of notice appear in the opinion.
Cadle then cites the Sixth Circuit decision in Revis v. Meldrum, 489 F.3d 273 (6th
Cir. 2007), in which a party secured judgment against the plaintiff and attempted to execute on
that judgment by issuing writs for seizure of his real and personal property. Revis, 489 F.3d at
277-78. Those writs were served by sheriff’s deputies who were accompanied by representatives
from the judgment creditor’s attorney’s firm as well as employees of a moving company. Id. at
278. At the time the writs were served, the sheriff’s deputies saw to the seizure of the real
property by means of the changing of the locks on the residence, as well as the removal of
personal items, such as artwork, from the home. Id.
The judgment debtor brought an action against all of those involved in the
issuance and service of the writs and the seizure of his real property.1 Id. at 280-81. Relevant to
this action was his claim against the sheriff’s deputy2 who was in charge of the operation in

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The judgment debtor did not challenge the seizure of his personal property. Revis, 489 F.3d at 282.
In support of his argument that he had not violated the debtor’s constitutional rights, the sheriff’s deputy cited the
Supreme Court’s decision in Endicott-Johnson Corp. v. Encyclopedia Press, Inc., 266 U.S. 285 (1924). Revis, 489
F.3d at 284. In that decision, the Court had held that, in the absence of a statutory notice requirement, it was not
necessary for a debtor to be given notice of execution on tangible personal property because the judgment against
that debtor would suffice to give him notice that execution could be forthcoming. Id. (citing Endicott-Johnson, 266
U.S. at 288). The Sixth Circuit in Revis distinguished the Endicott-Johnson ruling on the basis of the difference
between tangible personal property and real property, noting that the process due before garnishment of wages was
less than the process due before deprivation of property. Id. The court ultimately concluded that because the trial in
the civil case adjudicated only the civil claims and not the right to seize the debtor’s real property in satisfaction of
the judgment, no adequate notice had been provided for such a seizure and a constitutional violation had occurred.
Id. It went on to find that the deputy was entitled to qualified immunity because the right was not clearly established
and the deputy was simply serving a writ of execution he believed to be valid. Id. at 286.
2

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which the judgment debtor claimed that his due process rights were violated by the lack of notice
of the writs and eventual execution thereof on his real property. Id. The district court had found
that the sheriff’s deputy was entitled to qualified immunity on the claim, and that a lawful writ of
execution (which the deputy appeared to have) automatically entitled him to take possession of
the judgment debtor’s real property. Id. at 281.
In its discussion of the judgment debtor’s due process rights, the Sixth Circuit
focused heavily upon the rights at stake in execution upon real property as opposed to personal
property. Id. at 281-283. It noted that “[a]n individual’s immediate loss of possession of his or
her home plainly has greater adverse consequences than the loss of artwork or even a portion of
an individual’s wages.” Id. at 282. Under the Mathews factors, the court found that a strong
possessory interest a debtor has in his real property weighs heavily in favor of providing notice
prior to execution and seizure. Id.
Finally, Cadle relies heavily upon a case decided by the Ohio Second District
Court of Appeals, namely State v. Lopez, No. 2002CA81, 2003 WL 328031 (Ohio Ct. App.
2003). In Lopez, a criminal case in which the defendant’s personal property was seized at the
time of his arrest and was later sold, the criminal defendant alleged that he had not received
notice of the trial court’s order that his possessions should be sold and the proceeds applied to
restitution. State v. Lopez, No. 2002CA81, 2003 WL 328031 (Ohio Ct. App. 2003). The court
stated that “[a] person deprived of property without an opportunity to be heard is deprived of due
process of law.” Id. at ¶ 8 (citing Warren Sanitary Milk Co. v. Bd. of Review, Bureau of Unemp’t
Comp., 179 N.E.2d 385 (Ohio Com.Pl. 1961). While execution against the defendant’s property
was permitted under R.C. § 2929.18(D)(1), it required compliance with Chapter 2329, which in

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turn requires notice. Id. at ¶ 16. The lack of notice resulted in a deprivation of property without
the opportunity to be heard. Id. at ¶ 19. The court reversed and vacated the writ of execution. Id.
Interestingly, the court in Lopez noted that
[t]he relevant [execution] statutes contain no provision which governs how a court
that issues a writ of execution insures that its clerk will provide the judgment
debtor with the form of notice that R.C. [2329.091]3 prescribes and requires the
clerk to serve. Ordinarily, a praecipe or order to the clerk endorsed on the writ of
execution suffices. The writ which the court issued here contains no such order.
The record does not indicate that the clerk issued the notice to Lopez that R.C.
[2329.091] requires, and the State does not contend that the notice issued.
Id. at ¶ 18. The court’s observation implies that service of the praecipe on the judgment debtor
would suffice as notice.
2. Hicks’s argument for sufficiency of notice
Hicks argues that the notice provided to Cadle was sufficient to put him on notice
of the filing of the praecipes and the issuance of the writs of execution. For the sake of
clarification, that notice, according to Hicks, consisted of personal service of the writs to Cadle’s
counsel of record, as well as electronic notification of the praecipes and the writs through the
Court’s Electronic Case Filing (“ECF”) system, which automatically generates notice of each of
the filings in a case. (Doc. 91 at 2, 5.)
Furthermore, Hicks notes that Cadle suffered no prejudice even if the notice is
found to be insufficient. He points out that none of the entities that responded to the challenged
writs indicated that it held any of Cadle’s funds, and therefore no funds were seized as a result of
the challenged writs. He also argues that Hicks has challenged the issuance of the writs and has

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Throughout its opinion, the court in Lopez cites R.C. § 2929.091. No such statute exists, and the context of those
citations makes it clear that the court intended to cite to § 2329.091, but had made multiple citations to Chapter 2929
of the Revised Code and simply conflated the citations. The clearest basis for this conclusion is the fact that R.C. §
2929.18(D)(1) clearly cites to Chapter 2329 as the chapter under which a judgment creditor would execute judgment
against the property of a judgment debtor.

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argued against execution on the property identified therein. According to Hicks, these facts
indicate that Cadle has received notice and has had the opportunity to be heard.
In support of his argument that Cadle has suffered no prejudice and the motions to
quash the writs should therefore be denied, Hicks first cites Weithman Bros. v. Harmon, No. 305-05, 2005 WL 1503951 (Ohio Ct. App. 2005). In Weithman Bros., a judgment debtor’s
personal property was levied upon and sold by the sheriff on behalf of the judgment creditor, and
the judgment debtor attempted to stop the sales by filing a motion to set aside the sale. Id. at ¶¶
2-9. The motion was denied and the funds were distributed to the judgment creditor. Id. at ¶¶ 1112. The judgment debtor then appealed the denial of his motion to set aside the sales, arguing
that he had not received statutory notice. Id. at ¶ 13. The court specifically acknowledged that
there may have been merit to the judgment debtor’s assertion that he did not receive statutory
notice. Id. at 16. Nevertheless, it enumerated the motions the judgment debtor had filed in an
attempt to stop the sale of his property, as well as all of the judgment entries entered by the court
prior to the sale and mailed to the judgment debtor, and concluded that, regardless of the
statutory notice requirements, the notice the judgment debtor received had made him aware of
the scheduled sale of his goods, that he had taken advantage of several opportunities to challenge
the proceedings, and that the trial court had properly denied his motions. Id. at ¶¶ 17-22.
The statute in question in Weithman Bros., R.C. § 2329.13, is part of the same
chapter as that at issue in the instant matter, but it addresses the sale of goods on execution. At
the end of the section, there is a specific provision for a prejudice analysis in the event that a
creditor has failed to provide statutory notice:
(4)

If the court to which the execution is returnable enters its order confirming
the sale of the goods and chattels, the order has both of the following
effects:
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(a)

The order shall be deemed to constitute a judicial finding as
follows:
(i)

(ii)

(b)

That the sale of the goods and chattels complied with the
written notice requirements of division (A)(1)(a) of this
section and the public notice requirements of division
(A)(2) of this section, or that compliance of that nature did
not occur but the failure to give a written notice to a party
entitled to notice under division (A)(1)(a) of this section
has not prejudiced that party;
That all parties entitled to notice under division (A)(1)(a) of
this section received adequate notice of the date, time, and
place of the sale of the goods and chattels.

The order bars the filing of any further motions to set aside the sale
of the goods and chattels.

R.C. § 2329.13. In Weithman Bros., the appellate court was reviewing a case in which the trial
court had entered an order confirming the sale of goods and chattels, and therefore the prejudice
analysis was available both to the trial court and the appellate court. Weithman Bros., 2005 WL
1503951 at ¶¶ 17, 22.
Hicks next cites Bank One v. DWT Realty, Inc., No. 04 MA 206, 2006 WL
4642668 (Ohio Ct. App. 2006), which also involved an execution upon judgment debtors’
personal property under R.C. § 2329.13. The judgment debtors in Bank One had confessed
judgment in their answer to the plaintiff’s complaint for judgment on a promissory note, and in
so doing had expressly waived their right to notice of execution. Bank One, 2006 WL 4642668 at
* 1. When the plaintiffs attempted to execute judgment on the debtors’ personal property,
however, the debtors attempted to stop the execution by arguing, among other things, that the
plaintiffs had not provided statutorily sufficient notice of the sale of the property. Id. at *2. They
were unsuccessful and appealed. Id. On appeal, they raised the notice argument, to which the
judgment creditor responded by saying that the judgment debtors had suffered no prejudice, and
therefore any insufficiency in notice (which they did not deny) was harmless error. Id. at *3. The
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court of appeals agreed: Noting that the statute provided for a prejudice analysis in the event of
statutorily insufficient notice, and that the judgment debtors had signed a cognovit note waiving
their rights to notice and had included similar language in their answer confessing judgment, the
court concluded that they had waived their rights and no prejudice had been asserted or
demonstrated. Id. at *6.
Hicks has also cited the decision in Neubert v. Neubert, No. 11-094, 1986 WL
640 (Ohio Ct. App. 1986), in which the appellant (the former husband) owed child support to the
appellee (his former wife), and she obtained judgment against him and issued a writ of execution
against one of his vehicles. Neubert, 1986 WL 640 at *1. The appellant claimed an exemption
and requested a hearing. Id. It became clear at the hearing that the appellee had wrongly
identified the model year of the vehicle she was attempting to seize, and she later corrected and
re-issued the writ, but did not re-issue notice to the appellant. Id. The appellant then argued (after
various machinations not relevant to this discussion) that the writ was invalid because he had not
received proper statutory notice. Id.*2. The court concluded that, while the appellee had not
provided the appellant notice of the second writ, the appellant had known at the time of the
exemption hearing that the appellee intended to execute on the truck named in the second writ,
and therefore had constructive notice of the writ. Id. Further, the court noted that the trial court
had given the appellant an opportunity during the exemption hearing to exempt the truck
eventually named in the second writ when it became apparent that the appellee intended to name
that truck, but he had declined to do so. Id. Therefore the court found that the appellant had
suffered no prejudice. Id.
Similarly, in City of Columbus v. Capital Data Sys., Inc., 186 Ohio App.3d 775
(Ohio Ct. App. 2010), the court held that a failure to provide notice to the judgment debtor
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constituted harmless error as the debtor had not suffered prejudice as a result of the lack of
notice. Id. at ¶ 9. Citing Rule 61 of Ohio’s Rules of Civil Procedure, which mirrors Rule 61 of
the Federal Rules of Civil Procedure, the court held the error harmless because it did not affect
the debtor’s substantial rights in that she received a hearing on the garnishment issue, which is
the procedural safeguard that the notice requirement is intended to provide. Id.
C. Analysis of notice issue
Despite the extensive citation to case law that the parties have provided, as
summarized above, there appears to be no case law precisely on point. The Ohio Supreme
Court’s indication in Roach that execution statutes should be strictly construed and followed,
while apparently broadly applicable, had nothing to do with a notice requirement for execution
of judgments, and in fact the decision was issued well prior to the amendment of the statute that
instituted a notice requirement. The decision in Revis involved an actual seizure of real property,
not the threat of seizure of personal property or, as in this case, funds. Similarly, the debtor in
Lopez brought his claims after the seizure and sale of his personal property for which he received
no notice.
While Hicks has attempted to provide case law and statutory support for the
proposition that a prejudice analysis is appropriate in this instance, the citations he has provided
rely upon the statute that governs proceedings later in the execution process, specifically after the
sale of seized goods. R.C. 2329.13. On the other hand, two of the cases cited by Hicks and
summarized above, namely Neubert and City of Columbus, while they did not involve the
execution statute at issue in the instant matter, turned on a prejudice analysis in which the courts
concluded that the debtors were not prejudiced because they had been able to challenge the
execution despite the alleged or acknowledged insufficiency of the creditor’s notice.
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The entities that have responded to Hicks’s writs have stated that they hold none
of Cadle’s assets. A number of the writs have gone unanswered by the entities on which they
were served. Some of the writs remain unserved pending the Court’s ruling on this issue. In sum,
no assets have been located or seized as a result of the challenged writs.
Furthermore, Cadle has been able to challenge the substance of the execution
efforts by Hicks: the motions originally filed in this matter to quash the writs of execution raised
substantive legal issues about the propriety of levying on the assets Hicks sought by means of the
writs. Cadle clearly received notice (at very least electronic notice through the Court’s ECF
system) and acted upon it in filing his motions to quash, the merits of which the Court is now
considering. The notice issue was not one to which Cadle gave great attention or on which he
placed any emphasis prior to this Court’s prompting briefing.
The Court is satisfied in this matter that Cadle has suffered no prejudice as a
result of Hicks’s failure to provide sufficient notice as required by R.C. § 2329.091. All of the
safeguards that would have existed had Hicks provided statutory notice have been preserved by
means of Cadle’s motions to quash, and none of Cadle’s property has been seized. Having said
this, the Court would caution Hicks that, while in these particular circumstances Cadle has not
suffered prejudice, this is not to say that a future failure to provide statutory notice would lead to
the same result. Hicks has asserted in his briefing that it is “impossible to apply literally statutes
governing state procedure to a federal collection action.” (Doc. 91 at 3.) He further asserts that
he followed the federal rules for filing the praecipes and issuing the writs. The Court would
remind Hicks of Rule 69(a)(1) of the Federal Rules of Civil Procedure, which provides that “the
procedure on execution […] must accord with the procedure of the state where the court is
located […].” Fed. R. Civ. P. 69(a)(1) (emphasis added). It is not impossible for Hicks to provide
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the notice required under R.C. § 2329.091 (and set forth in toto in that section for Hicks’s ease of
use), and it would behoove him to do so from this point forward.
B. Additional bases
The Court will next review the bases presented by Cadle in support of his motions
to quash other than the sufficiency of notice. Cadle focused his efforts in his motions to quash on
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 Defendant 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. The Court will address these arguments in a different
order than that in which Cadle has presented them.4
1. Vagueness of writs
Cadle asserts that the writs are overly vague because they do not identify more
exactly what property is to be seized or whose property it is. This leaves the Marshal without
direction as to whether the property to be seized falls within Ohio’s execution statute. He has
provided no law to support this theory.
Hicks has responded that this theory is unsupported by law or fact. He notes that
the writs clearly identify Cadle as the defendant and Hicks as the party on whose behalf the writs
are being served. They also provide as much information as Hicks can provide without serving
discovery on the garnishees. Furthermore, the statutes under which execution is performed do
not give specific instructions as to the information that must be contained in a writ.

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Plaintiff argued in his response to the first motion to quash that Cadle cannot challenge the writs because he is not
a party to them. However, the case that Plaintiff cites, Windsor v. Martindale, 175 F.R.D. 665 (D. Colo. 1997), in
inapposite in that it addresses the challenging of a subpoena issued by an opposing party to a third party. The instant
matter deals with writs issued for the seizure of a party’s property, not subpoenas.

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Hicks properly notes that the writs are clear enough that Cadle has been able to
identify that stocks are at issue and has objected to their seizure. Furthermore, Hicks is correct
that the execution statutes do not itemize the information that must be included in the writs. See
R.C. § 2329.09. The writs are clear enough as issued that Cadle and the third-party financial
institutions can identify the property being seized. This argument is without merit.
2. Stocks not subject to execution
Ohio law provides that the items subject to execution are as follows: “Lands and
tenements [ . . . ] and goods and chattels, not exempt by law.” R.C. § 2329.01. Cadle claims that
the stocks identified in the writs he has moved to quash are not lands, tenements, goods or
chattels. He carefully provides the Black’s law dictionary definition of each of these words and
concludes that stocks are not included in any of the definitions. Again, Cadle does not cite any
law to support his position.
This is a specious argument. The law dictionary definitions may not specifically
state that “stocks” are among the types of items intended by the words “goods and chattels,” but
that does not exclude stocks from the scope of those terms. The Ohio Revised Code provision
Cadle cites indicates that the property governed by the statute is that which may be subjected to
levy and sale. Stocks are certainly saleable items. Furthermore, there is a significant amount of
case law in Ohio that discusses the seizure of stocks in the execution of judgments. See e.g.
Black River Lumber & Supply Co. v. Darakis, C.A. No. 3101, 1981 WL 3912 (Ohio Ct. App.
1981) (in which a stock certificate was seized by the sheriff upon serving the writ of execution);
The Peoples Bank of Wapokoneta, Ohio v. Regula, No. 2-81-19, 1981 WL 6755 (Ohio Ct. App.
1981) (in which the timing of the sheriff’s execution on the judgment-debtor’s stock was at issue,
but no general question as to the propriety of executing on stock arose).
3. Stock pledged to other creditors
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Cadle next contends that the stock sought by Hicks has been pledged to other
creditors in an amount that exceeds the judgment awarded to Hicks. He has attached an affidavit
to that effect as well as exhibits. He once again cites no law to support his claim that these funds
are not executable.
Hicks responds by suggesting that Cadle intentionally executed promissory notes
after Hicks commenced execution of the judgment in Colorado, and signed approximately 150
promissory notes in the month Hicks began those proceedings. Hicks asserts that, even if the
stock is already pledged to other creditors (which is not clear at this juncture), this is not a basis
for quashing the writs. He notes that Cadle cites no law in support of his proposition that the
writs should be quashed, but Hicks likewise cites no law in support of his argument that they
should not.
The issue of priority is not one that requires the quashing of a writ of execution.
Priority can be argued and determined after the levying of the judgment debtor’s property. “The
money derived from the sale of property on execution is substituted for the property itself and is
distributed among the creditors, including judgment creditors, and holders of outstanding
interests or claims, in the order of their priorities.” 40 Ohio Jur. 3d Enforcement of Judgments §
285 (citing Rauh v. Aknovitch, 59 Ohio St. 483 (Ohio 1899); Doll v. Barr, 58 Ohio St. 113 (Ohio
1898); Ryan v. Root, 56 Ohio St. 302 (Ohio 1897); Meier v. First Nat. Bank of Cardington, 55
Ohio St. 446 (Ohio 1896); Fidelity & Cas. Co. v. Thumm, 35 Ohio App. 499 (Ohio Ct. App.
1930); Miller v. Albright, 60 Ohio St. 48 (Ohio 1899); Wright v. Franklin Bank, 59 Ohio St. 80
(1898)). “Priorities in claims to money resulting from the sale of property on execution are
generally settled by an application or motion to the court to distribute the money.” Id. at § 287
(citing Douglas v. Wallace, 11 Ohio 42 (1841)). Cadle’s argument is without merit.
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4. Stock in LLC, LP
Cadle argues that his membership interest in limited liability companies and
limited partnerships are not stock and are not reachable on execution. He first asserts, as he did
with respect to the stock he owned, that interests in limited liability companies and limited
partnerships are not specified as subject to execution under R.C. § 2329.01. He then cites R.C. §
1705.19 as support for his position with respect to the limited liability company:
If any judgment creditor of a member of a limited liability company applies to a
court of common pleas to charge the membership interest of the member with
payment of the unsatisfied amount of the judgment with interest, the court may so
charge the membership interest. To the extent the membership interest is so
charged the judgment creditor has only the rights of an assignee of the
membership interest. Nothing in this chapter deprives a member of the member’s
statutory exemption.
As for his interest in the limited partnerships, Cadle cites R.C. § 1782.41
On application to a court of common pleas by any judgment creditor of a partner,
the court may charge the partnership interest of the indebted partner with payment
of the unsatisfied amount of the judgment with interest. To the extent so charged,
the judgment creditor shall have only the rights of an assignee of the partnership
interest.
Hicks makes little argument and cites no case law on this point. He suggests that it would
prejudice his rights to judgment to require him to file a creditor’s bill before he can obtain the
property that he alleges Cadle is hiding “throughout his corporate network,” and that the delay
that would result would give Cadle additional time to hide his assets.
On this issue, Cadle is correct. Ohio law regarding charging orders is as Cadle has
indicated with respect to limited liability companies and limited partnerships. While efforts to
find Ohio case law addressing whether a judgment creditor may seize a judgment debtor’s
interest by mean of a writ of execution have proved futile, a North Carolina appellate court has
decided the issue, and the statute in North Carolina regarding execution of judgment against a
membership interest in limited liability companies is substantively the same as Ohio’s statute:
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On application to a court of competent jurisdiction by any judgment creditor of a
member, the court may charge the membership interest of the member with
payment of the unsatisfied amount of the judgment with interest. To the extent so
charged, the judgment creditor has only the rights of an assignee of the
membership interest.
N.C. Gen. Stat. § 57C-5-03 (1993). In Herring v. Keasler, 563 S.E.2d 614 (N.C. App. 2002), the
appellate court reviewed a trial court’s decision preventing a plaintiff (the judgment creditor)
from having the membership interest of the defendant (the judgment debtor) in a limited liability
company seized and sold by means of a writ of execution. The trial court had first temporarily
enjoined the plaintiff from proceeding by means of a writ of execution, and had then issued a
charging order directing as follows:
[The defendant’s] membership interests in the LLCs [were] to be charged with
payment of the judgment, plus interest; the LLCs [were] to deliver to [the
plaintiff] any distributions and allocations that [the defendant] would be entitled
to receive on account of his membership interests in the LLCs; [the defendant]
[was] to deliver to [the plaintiff] any allocations and distributions he would
receive; and [the plaintiff] [was] not to obtain any rights in the LLCs, except as
those of an assignee and under the respective operating agreement.
Herring, 563 S.E.2d at 615. The appellate court affirmed the trial court’s judgment and held that
the plaintiff could not have the defendant’s membership interests sold, noting that “because the
forced sale of a membership interest in a limited liability company to satisfy a debt would
necessarily entail the transfer of a member’s ownership interest to another, thus permitting the
purchaser to become a member, forced sales of the type permitted in section 1-3625 are
prohibited.” Id. at 616.
Similarly, it is difficult to find Ohio case law on a judgment creditor’s attempt to
seize and sell a judgment debtor’s interest in a limited partnership. Logically, given the
parallelism between the Ohio statutes providing for a judicial charging order in the case of a
judgment creditor’s attempting to obtain interests in a limited partnership and in a limited
5

N.C. Gen. Stat. § 1-362 provides for the court to order the debtor’s property sold in satisfaction of judgment.

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liability company, the treatment of interests in a limited partnership should be the same as that of
a limited liability company. The case law in other states bears this out. See e.g. Evans v. Galardi,
546 P.2d 313 (Cal. 1976) (finding that, under a state statute substantively similar to Ohio’s R.C.
§ 1782.41 a judgment debtor’s interest in a limited partnership is not subject to execution, but
may be reached by means of a judicial charging order); see also 91st St. Joint Venture v.
Goldstein, 691 A.2d 272, 275 (Md. Ct. App. 1997) (providing a discussion of the genesis of
charging order statutes as a means of avoiding the sale of partnership interests, which would
result in the compulsory dissolution of the partnership).
While the decisions from other states regarding the seizure of interests in limited
liability companies and limited partnerships are not binding on this Court, they are instructive.
The safeguards created by the requirement of a charging order will protect Cadle’s rights and the
rights of the others with interests in the entities at issue here, without acting as a barrier to
Hicks’s rights. Therefore, the Court concludes that Hicks must first seek a judicial charging order
in order to reach Cadle’s interests in the limited liability companies and limited partnerships
Hicks is pursuing.
IV. Conclusion
In sum, Cadle’s motion is GRANTED in part and DENIED in part. Cadle’s
argument that his due process rights have been violated and that this forms a basis for quashing
Hicks’s writs is without merit, and the motions are denied in this regard. While notice was not
statutorily sufficient, Cadle was not prejudiced thereby, and his motions to quash the writs have
been considered by this Court prior to any seizure of his property. That being said, Hicks is once
again instructed that he should follow the notice provisions under Ohio law from henceforward,

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and that he must re-file with proper notice the praecipes currently being held in abeyance by the
Court before the Clerk of Court issues the related writs. (Docs. 82, 83.)
Cadle is incorrect that his stocks cannot be levied upon by means of a writ of
execution. He is further incorrect that the writs are overly vague. To the extent that his assets
may have been pledged to others, this is an issue that must be resolved after the property has
been seized, and does not suffice as a basis for quashing the writs at issue here. These arguments
are without merit and the motions are denied in these respects.
Cadle’s motion is granted with respect to his arguments that his membership in
limited liability companies and his interest in limited partnerships may not be levied upon
directly. Hicks may only proceed against those assets by means of a judicial charging order
pursuant to R.C. §§ 1705.19 1782.41.
IT IS SO ORDERED.
Dated: August 19, 2011
HONORABLE SARA LIOI
UNITED STATES DISTRICT JUDGE

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