         [Cite as Hersch v. Schwartz, 2012-Ohio-3908.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



ESTATE OF BEVERLY W. HERSH,                       :      APPEAL NO. C-110478
                                                         TRIAL NO. EX-1000633
        Judgment-Creditor-Appellee,               :

  vs.                                             :         O P I N I O N.

ROBERT L. SCHWARTZ,                               :

    Judgment-Debtor-Appellant.                    :




Civil Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed from is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: August 29, 2012


Joshua L. Goode, for Judgment-Creditor-Appellee,

Geoffrey P. Damon, for Judgment-Debtor-Appellant.




Please note: This case has been removed from the accelerated calendar.
                    OHIO FIRST DISTRICT COURT OF APPEALS




C UNNINGHAM , Judge.

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

Court of Common Pleas ordering the sale of his 1999 Mercedes Benz automobile

(“1999 Mercedes”), along with other personal items, and the application of all of the

net proceeds from the sale to satisfy part of a judgment obtained by the estate of

Beverly Hersh (“the estate”).

       {¶2}    For the reasons that follow, we reverse the trial court’s judgment and

remand the cause for a hearing consistent with this decision.

                                     The Facts

       {¶3}    The estate obtained a judgment against Schwartz in July 2010 for

over $300,000. The trial court issued a writ of execution under R.C. 2329.09 against

Schwartz’s property, and on July 20, 2010, sheriff’s deputies seized several items of

personal property belonging to Schwartz, including a 1999 Mercedes.

       {¶4}    Schwartz timely requested a hearing, in accordance with R.C.

2329.091(D), for the court to consider whether some of the seized property was

exempt from execution and sale. At this July 2010 hearing, Schwartz challenged the

seizure of his property based on several of the exceptions stated in R.C. 2329.66. He

specifically claimed the statutory exemption for motor vehicles, then valued at

$3225, and argued that his 1999 Mercedes was worth less than the exemption. He

also informed the court that he was scheduled to begin a four-year prison term in

less than a week and would, therefore, be unable to personally litigate the exemption

issue. Schwartz provided the court with the name of his local attorney.

       {¶5}    The estate informed the court that it had divided the seized property

between two auction houses and that it was in the process of having the property




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appraised. It requested that the court allow the parties to proceed under a procedure

in which the estate, when ready, would formally move the court for an order allowing

the sale of the appraised property at two auctions. The estate told the court that its

motion for approval to sell would serve as notice to Schwartz to present his specific

exemption argument for the court’s consideration.

       {¶6}    The court accepted the procedure and told Schwartz that it would

continue his exemption hearing “in progress.” The court also orally set a date in

September for the estate to provide a report on the status of the execution.

       {¶7}    Subsequently, the estate moved the court for approval to sell at

auction a portion of the seized property that was identified with appraised values in

an exhibit attached to the motion. The exhibit did not identify the 1999 Mercedes as

part of the property to be sold. At a hearing several weeks later, Schwartz’s attorney

argued that the items listed in the estate’s motion were exempt from execution under

R.C. 2329.66(A)(4)(a) as household goods and furnishings that Schwartz held

primarily for his personal, family, or household use. The trial court disagreed and

ordered the sale of the property. This court affirmed the trial court’s judgment.

Estate of Hersh v. Schwartz, 195 Ohio App.3d 295, 2011-Ohio-3994, 959 N.E.2d

1061 (1st Dist.) (“Schwartz I”).

       {¶8}    While Schwartz I was pending on appeal, the estate moved the trial

court for approval to sell at a second auction the 1999 Mercedes Benz and other

remaining miscellaneous property levied upon. Unlike the September 2010 motion

to sell, the estate did not attach an inventory and an appraisal of the property and

failed to indicate the date and time of the sale. The motion was filed on July 6, 2011,

and served on Schwartz’s attorney that same day by regular mail.




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       {¶9}      Also on that day, the estate appeared in court to report on the status

of the execution proceedings.      In the absence of Schwartz’s counsel, the estate

requested that the court grant the second motion to sell. The court granted the

motion and ordered the net proceeds to be applied to the judgment without any

discussion of Schwartz’s claimed exemption in the 1999 Mercedes.

       {¶10}     Schwartz now appeals from this judgment, arguing in two

assignments of error that the trial court erred by denying him due process in the

execution against his property and by denying him his statutory exemption for a

motor vehicle.

                                  Due-Process Claim

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

violated his procedural due-process rights in the execution against his property.

       {¶12}     A judgment debtor is entitled to due process of law in the execution

against his property, as the proceeding involves the deprivation of property. See

Schwartz I, 195 Ohio App.3d 295, 2011-Ohio-3994, 959 N.E.2d 1061, at ¶ 15. The

due-process clauses of the state and federal constitutions guarantee “a reasonable

opportunity to be heard after a reasonable notice of such hearing.” State ex rel.

Allstate Ins. Co. v. Bowen, 130 Ohio St. 347, 199 N.E. 355 (1936), paragraph five of

the syllabus, quoted in Ohio Valley Radiology Assoc., Inc. v. Ohio Valley Hosp.

Assoc., 28 Ohio St.3d 118, 125, 502 N.E.2d 599 (1986).

       {¶13}     To that end, R.C. 2329.091 provides for a hearing before property

levied upon in a writ of execution can be sold, if the judgment debtor timely requests

such a hearing. If a hearing is conducted, the trial court must determine what

portion of the property of the judgment debtor is exempt under R.C. 2329.66. R.C.




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2329.091(H). The court then must issue an order setting forth that determination

and ordering the nonexempt property to be sold. Id.

       {¶14}   The problem in this case is that the court continued Schwartz’s

exemption hearing until after his receipt of the estate’s motion to sell, but the court

held a hearing and granted the motion to sell on the day it was served, before

Schwartz had a meaningful opportunity to challenge it.

       {¶15}   The estate argues that the trial court’s judgment should be affirmed

for two reasons. First, it argues that Schwartz was not deprived of due process of law

because Schwartz or his attorney participated in two hearings on claimed exemptions

in July and September 2010, and he failed to offer admissible evidence in support of

the exemption claim at those hearings. But the record demonstrates that the court

continued the July 2010 hearing, after Schwartz asserted his motor-vehicle

exemption, so that it could examine the issue after the levied property had been

appraised and made ready for sale, as promised by the estate.

       {¶16}    And the September 2010 hearing involved only the property sought

to be sold by auction at that time, as identified by the exhibit attached to the estate’s

motion. The 1999 Mercedes was not included. Thus, the July and September 2010

hearings did not provide Schwartz with a meaningful opportunity to be heard on his

claimed motor-vehicle exemption.

       {¶17}   Next, the estate argues that Schwartz waived his due-process rights

because his attorney failed to appear at a prior status report hearing during which

the July 6, 2011, status report hearing was set. Alternatively, the estate argues that

Schwartz had constructive notice of the July 6, 2011, status report hearing pursuant

to the local rules of the Hamilton County Common Pleas Court.




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       {¶18}    With respect to this later argument, the estate specifically cites Loc. R.

6 of the Hamilton County Rules of Practice of the Court of Common Pleas, which

provides that “Publication in the Cincinnati Court Index shall be deemed official and

complete notification to all Hamilton County counsel of any assignment or setting of

any case for any purpose whatever and it shall be the duty of such counsel to

ascertain from the Cincinnati Court Index any official notification contained therein

pertaining to all cases.”

       {¶19}    We find both of these arguments meritless. First, the record does not

demonstrate that Schwartz’s counsel failed to appear at any status report hearings

held before July 6, 2011, or that a July 6, 2011, status report hearing had been

announced at a prior hearing. Second, notice of the status report hearing either

orally or by publication in the Cincinnati Court Index would not have been sufficient

to inform Schwartz to appear to reassert his claimed exemption, where the parties

had agreed that the “motion for court approval to sell” was to provide the notice.

       {¶20}    We believe it is important to note that the General Assembly has

enacted legislation requiring that a judgment debtor receive written notice in

accordance with Civ.R. 5 of the exemption hearing and of the impending sale of

goods and chattel on execution. See R.C. 2329.091(G); R.C. 2329.13(A)(1)(a)(i).         A

similar notice requirement should apply in this case.

       {¶21}    Although the estate served Schwartz with the motion for court

approval to sell, service occurred on the same date that the court granted the motion.

Thus, we are unable to find on this record that Schwartz has had a meaningful

opportunity to be heard on the issue of his motor-vehicle exemption. Accordingly,

we sustain the first assignment of error.

                            Statutory Motor-Vehicle Exemption



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       {¶22}    In his second assignment of error, Schwartz argues that the trial court

erred by not determining that the 1999 Mercedes was exempt from execution, and he

requests that this court find the vehicle exempt and order that it be returned to him.

We are unable to provide Schwartz the relief he requests. The record before us does

not demonstrate the value of the 1999 Mercedes or that Schwartz had not already

used the exemption for another motor vehicle.          Thus, we overrule the second

assignment of error.

                                     Conclusion

       {¶23}    The record demonstrates that Schwartz was not provided reasonable

notice and a meaningful opportunity to litigate his statutory motor-vehicle

exemption.     Therefore, we reverse the trial court’s judgment granting the estate’s

July 6, 2011 motion for approval to sell, and we remand the cause to the trial court

for a hearing on the motion and Schwartz’s claimed motor-vehicle exemption.

                                               Judgment reversed and cause remanded.

HILDEBRANDT, P.J., and DINKELACKER, J., concur.


Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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