[Cite as Estate of Hersh v. Schwartz, 195 Ohio App.3d 295, 2011-Ohio-3994.]




                             IN THE COURT OF APPEALS
                     FIRST APPELLATE DISTRICT OF OHIO
                              HAMILTON COUNTY, OHIO




ESTATE OF HERSH,                                 :         APPEAL NO. C-100664
                                                           TRIAL NO. EX-100633
        Appellee,                                :
                                                           D E C I S I O N.
v.                                               :

SCHWARTZ,                                        :

        Appellant.                               :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: August 12, 2011


Joshua L. Goode, for appellee.

Geoffrey P. Damon, for appellant.




        F ISCHER , Judge.

        {¶ 1}    Robert Schwartz appeals from a decision of the Hamilton County

Court of Common Pleas that ordered the sale of his property to satisfy a judgment

obtained by the estate of Beverly Hersh (“the estate”). For the following reasons,

we affirm.
                       OHIO FIRST DISTRICT COURT OF APPEALS



          {¶ 2} In July 2010, the Hamilton County Probate Court entered

judgment against Schwartz for over $300,000. The trial court then issued a writ

of execution, and sheriff’s deputies later seized several items of personal property

belonging to Schwartz. At a hearing the next day, Schwartz argued that some of

this property was exempt from execution under R.C. 2329.66. He also told the

court that he was unable to litigate the issue in person because he was scheduled

to begin a prison term in less than a week. The court advised Schwartz that his

attorney could represent him while he was incarcerated and scheduled a hearing

on his exemption claims.

          {¶ 3} Before the second hearing, the estate moved for an order to sell

some of the seized property at a “high end auction of art, antiques, and

collectibles.” Among the items listed in its motion were several slot machines,

various Andy Warhol memorabilia, and celluloids of Looney Tunes and Disney

cartoons. Together, this property was purportedly worth $8,270.

          {¶ 4} At the second hearing, Schwartz’s attorney argued that the items in

the estate’s motion were exempt from execution under R.C. 2329.66(A)(4)(a) as

household goods and household furnishings that Schwartz held primarily for his

personal, family, or household use. The court disagreed and ordered the sale of

the property. Schwartz now appeals, raising two assignments of error.

          {¶ 5} In his first assignment of error, Schwartz argues that the trial court

erred in ordering the sale of exempt property. We are not persuaded.

          {¶ 6} Under R.C. 2329.66, persons domiciled in Ohio may hold certain

property exempt from “execution, garnishment, attachment, or sale to satisfy a

judgment or order.”1 This includes any “interest not to exceed [$525] in any


1   R.C. 2329.66(A).


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particular item or [$10,775] in aggregate value, in household furnishings,

household goods, wearing apparel, appliances, books, animals, crops, musical

instruments, firearms, and hunting and fishing equipment that are held primarily

for the personal, family, or household use of the person.”2 Thus, whether a person

may exempt property under this provision depends on the property’s value, its type,

and why the person holds it.

       {¶ 7}      Schwartz argues that the trial court ordered the sale of “household

goods” and “household furnishings” that he held primarily for his “personal, family,

or household use.” The legislature has not defined these terms, and neither the

Ohio Supreme Court nor Ohio’s courts of appeals have interpreted them in this

context. Therefore, we must construe their meaning as a matter of first impression.

Statutory interpretation presents questions of law that we review de novo.3

       {¶ 8} Although there is no binding precedent, we do not lack guidance.

For instance, the United States Bankruptcy Court for the Northern District of Ohio

has defined “household goods” under R.C. 2329.66 as “ ‘items of personal property

reasonably necessary for the day to day existence of people in the context of the

homes.’ ”4     Applying this test, the court has held that one television and one

videocassette recorder are household goods, but that an extra television and a lawn

edger are not.5

       {¶ 9} The United States Bankruptcy Court for the Southern District of

Ohio, however, disagreed with this approach when interpreting the nearly

identically worded federal exemption statute.6 The court opposed any “necessity”


2 R.C. 2329.66(A)(4)(a).
3 State v. Consilio, 114 Ohio St.3d 295, 2007-Ohio-4163, 871 N.E.2d 1167, ¶ 8.
4 In re Szydlowski (Bankr.Ct.N.D. Ohio 1995), 186 B.R. 907, 911, quoting In re Barnes
(Bankr.Ct.D.Md.1990) 117 B.R. 842, 847.
5 Id.
6 In re Keeton (Bankr.Ct.S.D. Ohio 1993), 161 B.R. 410; Section 522, Title 11, U.S.Code.




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requirement as having no basis in the statute’s language. Instead, the court held

that “ ‘household goods’ * * * are those items of personal property that are typically

found in or around the home and used by the debtor or his dependents to support

and facilitate day-to-day living within the home, including maintenance and

upkeep of the home itself.”7 Under this test, the court determined that a water

softener was a household good.

       {¶ 10} This “functional nexus” test was first articulated by the Fourth

Circuit Court of Appeals in McGreevy v. ITT Fin. Servs.8 The court explained that

“the requisite functional nexus exists where—and only where—the good is used to

support and facilitate daily life within the house. It is the household good’s use for

these purposes that distinguishes it from a good that is merely located and used

within the house. Pots and pans are household goods because they are used to

support and facilitate daily household living; a model car collection, by contrast, is

not a household good because it serves no such purpose.”9

       {¶ 11} We adopt the McGreevy approach, which is consistent with the

language of R.C. 2329.66 and the statute’s underlying purpose “to protect funds

intended primarily for maintenance and support of the debtor’s family.”10 If the

legislature had intended a “reasonably necessary” test, it would have included this

language in R.C. 2329.66(A)(4)(a), as it did in the exemption provisions for child

support, spousal support, pensions, and annuities.11 This definition satisfies our

duty to read the words and phrases of the Revised Code in context and according to




7 (Emphasis added in Keeton.) Keeton at 414, quoting McGreevy v. ITT Fin. Servs. (C.A.4, 1992),
955 F.2d 957, 961-962.
8 McGreevy at 961.
9 (Emphasis sic.) Id.
10 Daugherty v. Cent. Trust Co. (1986), 28 Ohio St.3d 441, 445, 504 N.E.2d 1100.
11 See R.C. 2329.66(A)(1o)(b) and (11).




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the rules of grammar and common usage.12 And for the sake of consistency, it must

apply with equal force to the term “household furnishings.”

        {¶ 12} Next we must decide what it means to hold property for one’s

“personal, family, or household use.” In other chapters of the Revised Code, this

phrase essentially distinguishes consumer purposes from business purposes.13 We

find no reason to apply a different meaning here. We also agree with the McGreevy

court that this requirement does not “independently ensure the existence of a

functional nexus between the good and the household. This portion of the statute,

however, requires only that the good be ‘held’ for a personal as distinguished from a

commercial use, not that it actually be used for such a purpose.”14

        {¶ 13} In this case, Schwartz seeks to protect property that allegedly has

sentimental value. But items that have only sentimental value, such as art, do not

support and facilitate daily household living. Thus, this property cannot qualify

as either household goods or household furnishings under R.C. 2329.66(A)(4)(a).

Schwartz presented no evidence that any of the items either facilitated daily life

in his household or were held for consumer purposes; therefore, he failed to carry

his burden of proof.15 Accordingly, we overrule his first assignment of error.

        {¶ 14} In his second assignment of error, Schwartz argues that he was

denied due process of law because the trial court “refused to allow” him to claim his

property as exempt. This argument is without merit.


12 R.C. 1.42.
13 See, e.g., R.C. 1301.201(B)(11) (defining “consumer” under the Ohio Uniform Commercial Code
as “an individual who enters into a transaction primarily for personal, family, or household
purposes”); R.C. 1345.01 (defining “consumer transaction” under the Consumer Sales Practices
Act as “a sale * * * or other transfer of * * * goods, a service, a franchise, or an intangible, to an
individual for purposes that are primarily personal, family, or household”). See also Ford Motor
Credit Co. v. Ryan, 189 Ohio App.3d 560, 2010-Ohio-4601, 939 N.E.2d 891, ¶ 77 (“Purchases of
goods for primarily business purposes are not ‘consumer transactions,’ and thus cannot support a
[Consumer Sales Practices Act] claim”).
14 McGreevy at fn. 11.
15 See Baxter v. Old National-City Bank (1933), 46 Ohio App. 533, 541-542, 189 N.E. 514.




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                        OHIO FIRST DISTRICT COURT OF APPEALS



        {¶ 15} The United States Constitution and the Ohio Constitution guarantee

procedural due process.16 “Although the concept is flexible, at its core, procedural

due process under both the Ohio and United States Constitutions requires, at a

minimum, an opportunity to be heard when the state seeks to infringe a protected

liberty or property right.”17

        {¶ 16} Schwartz personally appeared before the trial court to argue that

some of his seized property was exempt from execution under R.C. 2329.66.

Although he did not attend a second hearing on the issue, due to his

incarceration, this does not mean that he was deprived of due process of law.18

The court personally notified Schwartz about the second hearing, and there is no

indication that Schwartz ever requested to attend.19 Moreover, his counsel did

attend and presented argument. On this record, we cannot say that Schwartz

lacked either notice or a meaningful opportunity to be heard. We overrule his

second assignment of error.

        {¶ 17} Therefore, the judgment of the trial court is affirmed.

                                                                            Judgment affirmed.


        D INKELACKER , P.J., and C UNNINGHAM , J., concur.




16 City of Youngstown v. Traylor, 123 Ohio St.3d 132, 2009-Ohio-4184, 914 N.E.2d 1026, ¶ 8.
17 State v. Cowan, 103 Ohio St.3d 144, 2004-Ohio-4777, 814 N.E.2d 846, ¶ 8, citing Boddie v.
Connecticut (1971), 401 U.S. 371, 377, 91 S. Ct. 780.
18 See Shepard Grain Co. v. Creager, 160 Ohio App.3d 377, 2005-Ohio-1717, 827 N.E.2d 392, at ¶
17 (“[A]n absolute right for an incarcerated party to be present in a civil action does not exist”).
19 Cf. id. at ¶ 17-18 (listing the factors a court should consider when deciding whether to grant a
prisoner’s request to be present at a civil hearing).


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