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Praetorium Secured Fund I, L.P. v. Keehan

Court of Appeals of Ohio, Ninth District, Lorain

August 26, 2019

PRAETORIUM SECURED FUND I, L.P. Appellee
v.
DAVID J. KEEHAN, et al. Appellants

          APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 18-CV-196166

          ROBERT 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 Appellee.

          DECISION AND JOURNAL ENTRY

          LYNNE S. CALLAHAN, JUDGE.

         {¶1} 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.

         I.

         {¶2} 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.

         {¶3} 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.

         II.

         ASSIGNMENT OF ERROR

         THE 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.

         {¶4} 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 disagrees.

         {¶5} 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.

         {¶6} 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 ...


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