In re Atty. Gen.'s Subpoena
Richard Cordray, Attorney General, and Melissa S. Szozda, Assistant Attorney General, State Office Tower, 14th Floor, 30 East Broad Street, Columbus, OH 43215-3428 (For Appellee Attorney General).
MEMORANDUM OPINION
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, William Bridge III, d.b.a. Columbus Fire Repair (“CFR“), appeals the judgment of the Geauga County Court of Common Pleas, denying his motion to quash an investigatory subpoena issued by appellee, the Ohio Attorney General, pursuant to
{¶2} In 2008, appellee received a series of citizen complaints against CFR, alleging that the complainants had entered into home repair contracts with CFR. They alleged they had paid CFR large sums of money for home repairs that CFR had either failed to perform or defectively performed, and that CFR refused to return the payments
{¶3} On or about May 27, 2009, appellee issued an investigatory subpoena duces tecum to appellant, instructing him to appear at the attorney general‘s office in Columbus on June 29, 2009 to testify concerning an investigation presently being conducted by appellee pursuant to the provisions of the Ohio Consumer Sales Practices Act,
{¶4} The duces tecum instructed appellant to bring with him 12 categories of documents related to CFR‘s contracting services performed for consumers from June 1, 2007 to date, including contracts entered into with consumers, estimates, proposals, permits, surety bonds, prior lawsuits, and consumer complaints.
{¶5} Appellant received the subpoena on June 5, 2009. On that date, appellant‘s attorney James R. Douglass, wrote a letter to Assistant Attorney General Melissa S. Szozda, advising her that appellant would cooperate with appellee‘s investigation. Mr. Douglass stated that appellant was currently in the process of copying every consumer file in his possession within the time frame referenced in the subpoena. He said that upon completion of copying, he would contact the attorney general and make the documents available for pick up, which he said would occur by June 22, 2009.
{¶6} Then, on June 26, 2009, without any further discussion with the attorney general or attempt to resolve the matter, appellant, through his new counsel, Leonard W. Yelsky, filed a motion in the trial court to quash the attorney general‘s subpoena, simply stating the subpoena “is an invasion of William Bridge‘s Constitutional Rights
{¶7} On July 8, 2009, appellee filed a brief in opposition to appellant‘s motion. On July 23, 2009, the court entered judgment, denying appellant‘s motion to quash, finding that the subpoena was authorized by
{¶8} Thereafter, on July 24, 2009, appellant filed a reply to the attorney general‘s brief in opposition. In support of his reply, appellant filed his affidavit in which he stated that he did not consent to the attorney general‘s search of his records, and that “[t]he remedies contained in the O.R.C. available to the Attorney General has made [him] feel insecure and in jeopardy.”
{¶9} Appellant appeals the trial court‘s judgment, asserting the following as his sole assignment of error:
{¶10} “The trial court erred and abused its discretion when the trial court denied appellant/petitioner‘s motion to quash the attorney general subpoena because if forced to testify pursuant to such subpoena appellant Bridge‘s Fifth Amendment rights would be compromised and violated by allowing the attorney general blanket authority to make an all encompassing uncontrolled exploratory search of all of petitioner‘s papers and records.”
{¶11} We observe that, after appellant filed his appeal, appellee filed a notice of withdrawal of the investigatory subpoena and a motion to dismiss the appeal as moot. The Tenth Appellate District in Nextel W. Corp. v. Franklin County Bd. Of Zoning Appeals, 10th Dist. No. 03AP-625, 2004-Ohio-2943, held:
{¶13} “***
{¶14} “Notwithstanding the above ***, there are exceptions to the mootness doctrine. A court may hear an appeal that is otherwise moot when the issues raised are ‘capable of repetition, yet evading review.’ State ex rel. Plain Dealer Pub. Co. v. Barnes (1988), 38 Ohio St.3d 165, paragraph one of the syllabus. The ‘capable of repetition, yet evading review’ exception to the mootness doctrine ‘applies only in exceptional circumstances in which the following two factors are both present: (1) the challenged action is too short in its duration to be fully litigated before its cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.’ State ex rel. Calvary v. Upper Arlington, 89 Ohio St.3d 229, 231, 2000-Ohio-142.” Nextel W. Corp., supra, at ¶10-14.
{¶15} “*** [T]here must be more than a theoretical possibility that the action will arise again. There must exist a ‘“reasonable expectation” or a “demonstrated probability” that the same controversy will recur involving the same complaining party.’ Murphy v. Hunt (1982), 455 U.S. 478, 482.” James A. Keller, Inc. v. Flaherty (1991), 74 Ohio App.3d 788, 792. We note that since the attorney general‘s subpoena has been
{¶16} For the reasons stated in the Opinion of this court, the instant appeal is dismissed.
MARY JANE TRAPP, P.J.,
TIMOTHY P. CANNON, J.,
Concur.