[Cite as CapitalSource Bank v. Miles, 2014-Ohio-119.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 100022

CAPITALSOURCE BANK

PLAINTIFF-APPELLANT 

vs. 

ANDR’E MILES, ET AL.

DEFENDANTS-APPELLEES 

JUDGMENT: 

DISMISSED

Civil Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CV-744822 

BEFORE: Celebrezze, P.J., Rocco, J., and E.T. Gallagher, J. 

RELEASED AND JOURNALIZED: January 16, 2014 
ATTORNEYS FOR APPELLANT

Kirk W. Liederbach 

Jeffrey R. Puthoff 

Law Office of Schwartz & Associates 

P.O. Box 14250 

Cleveland, Ohio 44114 

ATTORNEYS FOR APPELLEES

For Andr’e Miles

Kathryn Harlow 

1255 Euclid Avenue 

Suite 300 

Cleveland, Ohio 44115 

For Spouse, if any, of Andr’e Miles

Spouse, if any, of Andr’e Miles, pro se 

Andr’e Miles 

14469 Rochelle Drive 

Maple Heights, Ohio 44137 

For Cuyahoga County Treasurer

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Judith Miles 

Assistant Prosecuting Attorney 

The Justice Center 

1200 Ontario Street 

Cleveland, Ohio 44113 

For National City Bank

National City Bank, pro se 

6750 Miller Road, Loc #7120 

Brecksville, Ohio 44141 continued 
For State of Ohio, Department of Job & Family Services

Alan H. Weinberg 

Weltman, Weinberg & Reis Co. 

200 Lakeside Place 

323 Lakeside Avenue, West 

Cleveland, Ohio 44113 
FRANK D. CELEBREZZE, JR., P.J.: 

{¶1} Appellant, CapitalSource Bank f.b.o. Aeon Financial, L.L.C. (“Aeon”), 

brings the instant appeal from the dismissal without prejudice of its foreclosure action 

against Andr’e Miles. Aeon claims the trial court erred in dismissing its suit based on 

CapitalSource Bank’s failure to register with the Ohio Secretary of State as a foreign 

company doing business in Ohio. However, Aeon’s appeal from this determination is 

untimely. Therefore, this court lacks jurisdiction to entertain these arguments, and the 

appeal is dismissed. 

I. Factual and Procedural History

{¶2} Anna Miles owned residential property in Maple Heights, Ohio. County real 

estate taxes went unpaid for a number of years. She passed away on May 20, 2009. On 

October 23, 2009, CapitalSource Bank f.b.o. Aeon Financial, L.L.C. purchased 

delinquent tax certificates related to this property from Cuyahoga County for tax years 

2006 through 2009. Aeon recorded the certificates. After attempts to collect the debt 

were unsuccessful, Aeon filed a foreclosure action on January 3, 2011. 

{¶3} Andr’e, the son of Anna Miles, filed an untimely answer, which the trial court 

accepted. Andr’e attempted to persuade the court that the certificates were void because 

proper notice had not been sent to Anna Miles or her estate after she passed away. 

Several motions for summary judgment were filed by the parties. In his January 14, 2013 

motion, Andr’e elaborated on a defense raised in his answer — that CapitalSource Bank, 

an Illinois company, lacked standing to maintain suit because it was not registered with 
the secretary of state and was transacting business in Ohio. Aeon argued that it was the 

real party in interest and CapitalSource Bank was simply a financing party that transacted 

no business in Ohio. 

{¶4} On March 29, 2013, the magistrate found that CapitalSource Bank was 

required to register with the secretary of state to maintain suit, and since it had not, the 

magistrate recommended the case be dismissed without prejudice. On April 1, 2013, the 

trial court dismissed the case without prejudice. 

{¶5} On April 5, 2013, Aeon filed a request for the trial court to issue findings of 

facts and conclusions of law. The trial court made it abundantly clear that the case had 

been dismissed when it ruled, on April 22, 2013, that “[t]here is no jurisdiction to rule on 

[this] request.” Aeon then filed objections to the magistrate’s decision on May 6, 2013. 

Finally, on May 21, 2013, the trial court entered an order stating: “[Aeon’s] objection to 

magistrate’s decision issued March 29, 2013 is not well taken as there is no pending 

matter before the court.” Aeon then filed a notice of appeal on June 20, 2013, assigning 

the following errors: 

I. The trial court erred in dismissing the action because it incorrectly 

identified CapitalSource Bank as the plaintiff in this case and, thus, grounds 

for dismissal regarding CapitalSource Bank’s standing is erroneous. 

II. The trial court erred in dismissing the action, ruling CapitalSource Bank 

lacks standing to invoke the jurisdiction of the court for failure to obtain a 

license to conduct business under R.C. 1703.29, because CapitalSource 

Bank is not the plaintiff in the case and, regardless, CapitalSource Bank fbo 

Aeon Financial (the proper plaintiff) has statutorily-authorized standing 

under R.C. 5721.37. 
III. The trial court erred in granting defendant’s motion for summary 

judgment on the issue of CapitalSource Bank’s licensing to do business 

under R.C. 1703.29 because defendant failed to meet its burden under Ohio 

Civ.R. 56 to demonstrate that CapitalSource Bank transacts business in the 

state. 

IV. The trial court erred in failing to issue a magistrate’s decision with 

findings of facts and conclusions of law as requested by Plaintiff in 

compliance with Civ.R. 53(D)(3)(a)(ii). 

II. Law and Analysis

{¶6} Aeon claims that the bank financing its purchases of delinquent tax 

certificates does not need to register in Ohio in order for Aeon to maintain suit on those 

certificates, but we do not reach the issues raised in the present appeal. This court is 

without jurisdiction because Aeon’s appeal is untimely. 

{¶7} This court only has jurisdiction to entertain timely appeals from final, 

appealable orders of the lower court. 1 App.R. 4(A); App.R. 3(F)(1); Chinnock v. 

Rothschild, 8th Dist. Cuyahoga No. 83099, 2003-Ohio-6928, ¶ 18. App.R. 4(A) 

provides, “[a] party shall file the notice of appeal required by App.R. 3 within thirty days 

of the later of entry of the judgment or order appealed * * *.” Assuming there is a final 

order in the present case, that order was entered before April 22, 2013, when the trial 

court made clear that it no longer had jurisdiction over the matter. 

 1

 An issue in this case is whether a dismissal without prejudice may constitute a final, 

appealable order. See, e.g., Lakeview Holding (OH), L.L.C. v. Deberry, 8th Dist. Cuyahoga No. 

99033, 2013-Ohio-1457. Generally, a dismissal without prejudice does not resolve an action and is 

therefore not considered a final order in a given case absent some prejudice to the appealing party. 

Id. at ¶ 9. However, we will assume without deciding that the order is final and appealable. 
{¶8} Generally, when a party makes a motion for findings of facts and conclusions 

of law relating to a magistrate’s decision, this extends the time the moving party has to 

file objections to that decision. Civ.R. 53(D)(3)(b)(i). Civ.R. 53(D)(3)(a)(ii) indicates 

that a request for findings must come within seven days of the magistrate’s decision. 

Civ.R. 53(D)(3)(b)(i) also indicates that the 14-day period within which to file objections 

to the magistrate’s decision is stayed when a timely request for findings is made. It 

states, “[i]f a party makes a timely request for findings of fact and conclusions of law, the 

time for filing objections begins to run when the magistrate files a decision that includes 

findings of fact and conclusions of law.” Further, 

[a] trial court may adopt a magistrate’s decision and enter judgment either 

before or after the 14-day period for filing objections expires. See Civ.R. 

53(D)(4)(e)(i). If the court adopts the decision before the period expires, 

however, the parties still have the right to file objections. 

Skydive Columbus Ohio, L.L.C. v. Litter, 10th Dist. Franklin No. 09AP-563, 

2010-Ohio-3325, ¶ 9. 

{¶9} Generally, this would make Aeon’s filings timely and the notice of appeal 

timely as well. However, the trial court adopted the magistrate’s decision before Aeon 

made a request for findings of facts and conclusions of law. In fact, the request made by 

Aeon for findings is plainly addressed to the trial court, not the magistrate. The trial 

court made clear in its decision regarding Aeon’s request for findings that the case was 

dismissed and it would no longer entertain filings from Aeon. The April 22, 2013 order 

of the trial court states, “[t]here is no jurisdiction to rule on [this] request.” This, coupled 
with the court’s April 1, 2013 order dismissing the case without prejudice adequately 

indicated the court’s decision was appealable at that time. 

{¶10} Aeon, however, did not immediately appeal. Instead it filed formal, 

untimely objections on May 6, 2013. The objections were untimely because the filing 

requesting findings asked the court to make findings regarding its decision. It did not 

seek the same of the magistrate. This motion does not fit within Civ.R. 53(D)(3)(a)(ii), 

and therefore does not act to extend the time for objections under Civ.R. 53(D)(4)(e)(i). 

The rule provides tolling of the time for filing objections until “the magistrate files a 

decision that includes findings of fact and conclusions of law.” Civ.R. 53(D)(3)(b)(i). 

Aeon never requested that the magistrate issue findings of fact and conclusions of law. 

The May 6, 2013 objections were therefore untimely. This filing did not act to extend 

the time for appeal. Therefore, the appeal is untimely and it must be dismissed.2

III. Conclusion

{¶11} This appeal is dismissed as untimely. This court does not touch on the 

issues raised. Accordingly, Aeon should ensure that it has proper standing to maintain 

suit and then refile its claim. 

{¶12} Accordingly, the appeal is dismissed. 

It is ordered that appellees recover of appellant costs herein taxed. 

 2

 This holding is dispositive of the present appeal no matter if the dismissal without prejudice 

constituted a final, appealable order. If the order issued by the trial court was not appealable because 

it did not determine the action and did not prevent a judgment, then the same result would occur. 

The appeal would be dismissed and Aeon would have to refile its claim. 
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

FRANK D. CELEBREZZE, JR., PRESIDING JUDGE 

KENNETH A. ROCCO, J., and 

EILEEN T. GALLAGHER, J., CONCUR