PRAETORIUM SECURED FUND I, L.P. Appellee
DAVID J. KEEHAN, et al. Appellants
FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF
LORAIN, OHIO CASE No. 18-CV-196166
R. KRACHT, CHARLES J. PAWLUKIEWICZ, and NICHOLAS R. OLESKI,
Attorneys at Law, for Appellants.
RICHARD W. CLINE and JOSEPH M. MUSKA, Attorneys at Law, for
DECISION AND JOURNAL ENTRY
S. CALLAHAN, JUDGE.
Appellants, David Keehan, Donald Keehan, Jr., and Denise
Keehan ("the Keehans"), appeal the judgment of the
Lorain County Common Pleas Court granting Appellee,
Praetorium Secured Fund I, LP's ("Praetorium")
petition to issue foreign subpoenas and denying their motion
to dismiss and motion to quash subpoenas. For the reasons set
forth below, this Court affirms.
In September 2018, Praetorium petitioned the Lorain County
Common Pleas Court to issue three subpoenas duces tecum to
the Keehans pursuant to R.C. 2319.09, the Uniform Interstate
Depositions and Discovery Act. Praetorium is the plaintiff in
a lawsuit against Donald Keehan, Sr. pending in the Circuit
Court of the 20th Judicial Circuit in Lee County, Florida.
The Keehans are not parties to the Florida action. As part of
the Florida litigation, Praetorium sought mortgage and loan
applications, home and automobile lease agreements, and a
copy of driver's licenses from the Keehans.
The Lorain County Common Pleas Court granted the petition and
ordered the clerk of court to execute the foreign subpoenas.
The foreign subpoenas were personally served upon each of the
Keehans. Instead of producing the documents, the Keehans
filed a motion to dismiss the petition and quash the
subpoena. The trial court denied the motion and found that
Praetorium "satisfied the statutory scheme of O.R.C.
2319.09 for the issuance of foreign subpoenas." The
Keehans have timely appealed.
TRIAL COURT ERRED BY GRANTING [PRAETORIUM'S] PETITION FOR
ISSUANCE OF FOREIGN SUBPOENAS AND BY DENYING [THE
KEEHANS'] MOTION TO DISMISS AND TO QUASH SUBPOENAS.
The Keehans argue that because Praetorium is not a legal
entity, it lacks standing and capacity to sue as it relates
to the petition to issue foreign subpoenas under R.C.
2319.09. Accordingly, the Keehans contend the petition should
have been dismissed and the subpoenas quashed. This Court
The Keehans contend that this Court must conduct a de novo
review because a challenge to Praetorium's standing is a
question of law. See Moore v. Middletown, 133 Ohio
St.3d 55, 2012-Ohio-3897, ¶ 20. While a motion to
dismiss for lack of standing would require a de novo review,
the Keehans' motion is not a proper motion to dismiss.
The Keehans' motion to dismiss the petition for foreign
subpoena did not identify any civil rule upon which their
motion was premised. We recognize that challenges based upon
standing and capacity to sue are properly presented via a
Civ.R. 12(B)(6) motion to dismiss for failure to state a
claim. Eichenberger v. Woodlands Assisted Living
Residence, L.L.C., 10th Dist. Franklin No. 12AP-987,
2013-Ohio-4057, ¶ 15, citing Kirlay v. Francis A.
Bonanno, Inc., 9th Dist. Summit No. 18250, 1997 WL
775685, *1 (Oct. 29, 1997); State ex rel N. Ohio Chapter
of Associated Builders and Contrs., Inc. v. Barberton City