[Cite as Beneficial Mtge. Co., Inc. v. Dickerson, 2014-Ohio-5045.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Beneficial Mortgage Company, Inc., : 

 Plaintiff-Appellant/ : 

 Cross-Appellee, 

 : No. 14AP-282 

v. (C.P.C. No. 06CV-10370) 

 : 

Sandra J. Dickerson, (REGULAR CALENDAR) 

 : 

 Defendant-Appellee/ 

 Cross-Appellant. :

 

D E C I S I O N 

Rendered on November 13, 2014

 

Ulmer & Berne LLP, John M. Alten, Melissa L. Zujkowski

and Reem S. Henderson, for plaintiff-appellant/crossappellee. 

Kevin E. Humphreys, for defendant-appellee/crossappellant Sandra J. Dickerson. 

 

APPEAL from the Franklin County Court of Common Pleas and 

on Objections to the Magistrate's Decision 

DORRIAN, J. 

{¶ 1} Defendant-appellee/cross-appellant, Sandra J. Dickerson, filed a motion to 

dismiss the appeal filed by Beneficial Mortgage Company, Inc. Beneficial Mortgage 

Company, Inc. filed a notice of appeal on April 7, 2014. Appellee argues that Beneficial 

Mortgage Company, Inc. does not have standing to bring the appeal. On June 6, 2014, 

Beneficial Mortgage Company, Inc. moved for leave to amend the notice of appeal to 

substitute "Beneficial Mortgage Co. of Ohio" or "Beneficial Financial I Inc." as the name of 

the appellant. 

{¶ 2} Pursuant to Civ.R. 53(D), Loc.R. 13(M) and App.R. 34(B), this matter was 

referred to a magistrate (1) to conduct an evidentiary hearing to determine whether 
No. 14AP-282 2 

Beneficial Mortgage Company, Inc. has the right to appeal the trial court's judgment, and 

(2) to hold oral argument on Beneficial Mortgage Company, Inc.'s motion to amend the 

notice of appeal. 

{¶ 3} The magistrate issued the appended decision, including findings of facts 

and conclusions of law. The magistrate recommends that this court (1) grant 

appellee/cross-appellant's motion to dismiss this appeal, and (2) deny Beneficial 

Mortgage Company, Inc.'s motion for leave to amend the notice of appeal. 

{¶ 4} Beneficial Mortgage Company, Inc.1 (hereinafter "objector")2 has filed 

objections to the magistrate's decision granting the motion to dismiss and denying the 

motion to amend. In the objections, for the first time, counsel for objector refers to the 

name Beneficial Mortgage Company, Inc. as a "scrivener's error" and a "mere oversight," 

"harmless naming imperfection," "but a few typographical characters [different]," and an 

"[innocent] technical error [or] mistake." (Response, 3-8.) Counsel argues that it would 

be "draconian" to elevate form over substance by granting the motion to dismiss and 

denying the motion to amend as the magistrate has recommended. 

{¶ 5} Up until the actual hearing before the magistrate, however, the same 

counsel argued tenaciously that objector is the successor to Beneficial Mortgage Co. of 

Ohio. Indeed, in the May 5, 2014 response to appellee's motion to dismiss, counsel 

stated: "The true rights [to appeal] are Beneficial Mortgage Company, Inc.'s because the 

originally named entity-plaintiff has ceased to exist and Beneficial Mortgage Company has 

succeeded to those rights." (Emphasis sic.) (Response, 10.) Apparently counsel made the 

same representations to the trial court in its pleadings and motions as he has noted on 

pages 4-5 of his response. Counsel further stated: "In reality, 'Beneficial Mortgage 

Company of Ohio' ceased being an active company years ago. Beneficial Mortgage 

Company, Inc. succeeded to the rights related to Dickerson's mortgage. While no formal 

Rule 25 motion was filed in the underlying action, Beneficial advised the trial court and 

 

1 Appellee argues that the objections of Beneficial Mortgage Company, Inc. are a legal nullity because it is 

axiomatic that objections cannot be tendered in judicial proceedings by or on behalf of a non-existent entity. 

Without deciding this issue, in the interest of justice, we will consider the merits of the objections. 

2 Throughout his decision, the magistrate refers to Beneficial Mortgage Company, Inc. as "appellant." 

Nevertheless, because we determine that Beneficial Mortgage Company, Inc. does not have standing to bring 

this appeal, it cannot then be the appellant in this action. Therefore, we will refer to Beneficial Mortgage 

Company, Inc. as "objector." 
No. 14AP-282 3 

the parties of this through the pleadings listed above." (Response, 6.) Also in the 

response, counsel asks that the motion to dismiss be denied or that, "[i]n the alternative, 

under Civil Rule 25(C) the court should allow Beneficial Mortgage Company to substitute 

in as a plaintiff-appellant." (Response, 11.) 

{¶ 6} In her reply brief and at the hearing before the magistrate, appellee 

produced certified records from the Ohio Secretary of State that the Secretary has no 

record of a business entity named "Beneficial Mortgage Company, Inc."3 Only then did 

objector concede that Beneficial Mortgage Company, Inc. is a nonexistent entity and that 

it was a mistake to put the name Beneficial Mortgage Company, Inc. on the notice of 

appeal. Counsel for objector stated: "We always understood that entity to be the 

successor liability entity for the servicing of the mortgage. That's different than who 

actually holds the note and has standing as a plaintiff on the note. That was a 

misunderstanding." (Tr. 38.) 

{¶ 7} We begin by noting that objector does not object to any of the magistrate's 

findings of fact; therefore, we adopt them as our own. 

{¶ 8} Objector focuses its arguments on the magistrate's decision to deny the 

motion to amend the notice of appeal. Objector's counsel argues that the magistrate 

misapplied Transamerica Ins. Co. v. Nolan, 72 Ohio St.3d 320 (1995), and Ambrosia 

Coal & Constr. Co. v. C.B.G. Inc., 7th Dist. No. 00C.A. 101 (2001), in determining whether 

to grant objector's motion to amend the notice of appeal. Objector asserts the magistrate 

did not consider the criteria set forth in Transamerica to determine whether it was 

appropriate to grant the motion to amend. 

{¶ 9} In Transamerica, the Supreme Court of Ohio stated that it was appropriate 

to grant a motion to amend a notice of appeal where "the mistake was made in good faith, 

no prejudice accrued as a result, dismissal constituted a disproportionate sanction, the 

client was punished for the fault of his counsel and the dismissal frustrated the overriding 

 

3 It must be noted that, within the course of 35 days, from the time objector filed its notice of appeal on 

April 7, 2014, to the time appellee filed its reply to objector's memorandum contra the motion to dismiss on 

May 12, 2014, appellee was able to obtain records from the Ohio Secretary of State evidencing the true 

successor in interest and the non-existence of objector. Yet, objector's counsel appears to have made no 

effort to do the same from the time it first represented to the trial court that objector was the successor in 

interest to the filing of its memorandum contra to dismiss the appeal in which it represented the same to this 

court. 
No. 14AP-282 4 

objective of deciding cases on their merits." Id. at 322, citing Natl. Mut. Ins. Co. v. 

Papenhagen, 30 Ohio St.3d 14 (1987). 

{¶ 10} In his decision, the magistrate found the facts in this case to be more 

analogous to the facts in Ambrosia, than the facts in Transamerica. Here, as in 

Ambrosia, a "non-existent entity" is moving to amend the notice of appeal. These facts 

are distinguished from the facts in Transamerica where the original appellant had 

standing to appeal in his own right. They are likewise distinguished from the facts in the 

precursor cases objector cites in its brief in support of its argument. See Papenhagen

(where the Supreme Court of Ohio reversed the decision of the court of appeals 

dismissing an appeal due to the appellant listing two case captions and case numbers on a 

single notice of appeal form), and Maritime Mfrs., Inc. v. Hi-Skipper Marina, 70 Ohio 

St.2d 257 (1982) (where the Supreme Court of Ohio reversed the decision of the court of 

appeals dismissing an appeal due to the appellant providing the date of the trial court's 

decision on a decision to deny new trial, rather than the date of the trial court's final 

judgment entry). In neither of these cases was the question presented whether a nonexistent entity with no standing to appeal, which filed a notice of appeal, may move to 

amend the notice of appeal to include an existing entity with standing to appeal after the 

time for filing a notice of appeal has expired. 

{¶ 11} For the reasons stated in the magistrate's decision, we likewise find 

Ambrosia to be persuasive. Here, as in Ambrosia, the jurisdiction of the court was never 

invoked prior to the time expiration for the filing of the notice of appeal. Accordingly, we 

adopt the magistrate's conclusion to deny objector's June 6, 2014 motion to amend the 

notice of appeal. 

{¶ 12} As noted above, objector focuses his argument on the motion to amend the 

notice of appeal. Objector did, however, also object to the magistrate's decision to grant 

appellee's motion to dismiss. Nevertheless, objector did not object to the magistrate's 

conclusions that: "Beneficial Mortgage Company, Inc. is not a successor of plaintiff 

Beneficial Mortgage Co. of Ohio"; "We do know by an official record of the Ohio Secretary 

of State that the secretary has no record of an entity known as 'Beneficial Mortgage 

Company, Inc.' "; "It can be noted that there is no evidence before this court showing that 

an entity described as 'Beneficial Mortgage Company' is a successor to plaintiff Beneficial 
No. 14AP-282 5 

Mortgage Co. of Ohio."; " 'Beneficial Mortgage Co.' is clearly not a successor to plaintiff"; 

and "[I]t is clear that appellant has no legal interest in bringing this appeal." (Appendix 

¶ 39, 40, 42 and 44.) Accordingly, we adopt as our own the magistrate's conclusion to 

grant appellee's April 21, 2014 motion to dismiss the appeal. 

{¶ 13} Finally, we find to be moot appellee/cross-appellant's July 31, 2014 motion 

to strike Beneficial Mortgage Company, Inc.'s reply filed July 30, 2014. We further sua 

sponte dismiss the conditional cross-appeal of appellee/cross-appellant. Appellee/crossappellant stated in her notice of appeal that: "This conditional cross-appeal by Dickerson 

is conditioned upon the event that the Court of Appeals, Tenth Appellate District of 

Franklin County, Ohio, grants any relief to the Appellant or Beneficial by way of reversal 

or modification of: (a) the Trial Court's Judgment Entry dated October 11, 2012; and/or 

(b) the March 10, 2014, Decision and Entry Denying Plaintiff's October 25, 2012, Motion 

for Judgment Notwithstanding the Verdict and Motion for a New Trial." (Emphasis sic.) 

As objector's appeal is being dismissed, no such relief will be granted, and, therefore, 

dismissal of the conditional cross-appeal is warranted. 

{¶ 14} Upon review of the magistrate's decision, an independent review of the 

record, and due consideration of objector's objections, we find the magistrate has properly 

determined the pertinent facts and concluded to deny the motion to amend the notice of 

appeal and to dismiss the appeal. We, therefore, overrule objector's objections to the 

magistrate's decision, and we adopt the magistrate's findings of fact and conclusions of 

law. Further, we find to be moot appellee/cross-appellant's motion to strike and, 

therefore, sua sponte dismiss the conditional cross-appeal of appellee/cross-appellant. 

Objections overruled; motion to amend the 

notice of appeal denied; motion to dismiss the 

appeal granted; motion to strike found to be 

moot; conditional cross-appeal sua sponte 

dismissed.

KLATT and O'GRADY, JJ., concur. 

__________ 
No. 14AP-282 6 

APPENDIX 

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Beneficial Mortgage Company, Inc., : 

 Appellant/ : 

 Cross-Appellee, 

 : 

v. No. 14AP-282 

 : (C.P.C. No. 06CV-10370) 

Sandra J. Dickerson, 

 : (REGULAR CALENDAR) 

 Defendant-Appellee/ 

 Cross-Appellant. : 

 

M A G I S T R A T E ' S D E C I S I O N 

Rendered on June 27, 2014

 

Ulmer & Berne LLP, John M. Alten, Melissa L. Zujkowski

and Reem S. Henderson, for appellant/cross-appellee. 

Kevin E. Humphreys, for defendant-appellee/crossappellant Sandra J. Dickerson. 

 

 ON MOTION TO DISMISS 

 ON MOTION FOR LEAVE TO AMEND THE NOTICE OF APPEAL 

 

{¶ 15} This appeal originated on April 7, 2014 when a notice of appeal was filed by 

an attorney who identified the appellant as "Beneficial Mortgage Company, Inc." On April 

21, 2014, appellee, Sandra J. Dickerson filed a motion to dismiss challenging appellant's 

standing to bring this appeal. On June 6, 2014, appellant moved for leave to amend the 

notice of appeal. 
No. 14AP-282 7 

{¶ 16} Earlier, on May 23, 2014, this magistrate, pursuant to App.R. 34(B), was 

appointed to conduct an evidentiary hearing to determine whether appellant has the right 

to appeal the trial court's judgment. Later, on June 9, 2014, this court instructed the 

magistrate to also hold oral argument on appellant's motion to amend the notice of 

appeal. 

{¶ 17} On June 18, 2014, the magistrate held an evidentiary hearing and oral 

arguments of counsel. This magistrate's decision shall render findings of fact and 

conclusions of law along with a recommendation to the court regarding appellee's 

April 21, 2014 motion to dismiss and appellant's June 6, 2014 motion for leave to amend 

the notice of appeal. 

Findings of Fact: 

{¶ 18} 1. On August 10, 2006, Beneficial Mortgage Co. of Ohio filed in the Franklin 

County Court of Common Pleas ("common pleas court" or "trial court") a complaint 

against defendant Sandra J. Dickerson ("Dickerson") seeking a judgment in the amount of 

$25,421.91 together with interest on a promissory note executed by Dickerson. The 

plaintiff also sought foreclosure of certain mortgage deeds securing the promissory note. 

The note and mortgage deeds were regarding certain real estate located at 940-950 East 

Broad St., Columbus, Ohio. 

{¶ 19} 2. According to official records kept by the office of the Ohio Secretary of 

State, effective December 31, 1996, Beneficial Ohio Inc., a Delaware corporation, merged 

with Beneficial Mortgage Co. of Ohio. As a result of the merger, the corporate title of the 

survivor was changed to Beneficial Ohio Inc. 

{¶ 20} 3. Thus, almost a decade prior to the August 10, 2006 filing of the common 

pleas court action, the named plaintiff, Beneficial Mortgage Co. of Ohio, had ceased to 

exist in that name due to the merger. At the time of the filing of the complaint, Beneficial 

Ohio Inc. was the survivor of the merger. 

{¶ 21} 4. On June 26, 2008, Dickerson filed an amended answer and 

counterclaim. The counterclaim was filed against Beneficial Mortgage Co. of Ohio, the 

named plaintiff in the common pleas court action. 
No. 14AP-282 8 

{¶ 22} 5. On May 29, 2009, plaintiff, Beneficial Mortgage Co. of Ohio, filed its 

answer to Dickerson's counterclaim. The pleading does not indicate that Beneficial 

Mortgage Co. of Ohio had ceased to exist. 

{¶ 23} 6. According to official records kept by the office of the Ohio Secretary of 

State, effective March 18, 2011, Beneficial Ohio Inc., a Delaware corporation, merged into 

Beneficial Financial I Inc., a California corporation 

{¶ 24} 7. Following a lengthy jury trial during June 2012, the trial court entered 

judgment on October 11, 2012. On plaintiff's breach of contract claim, the trial court 

entered judgment for Dickerson and against plaintiff. The trial court noted that plaintiff 

had withdrawn its foreclosure claim. 

{¶ 25} On Dickerson's claim for negligent misrepresentation, the jury returned a 

verdict in favor of Dickerson and against plaintiff. Based on the jury verdict, the court 

entered judgment for Dickerson and against plaintiff in the amount of $1,127,793. 

{¶ 26} During the trial, the court entered directed verdicts in favor of plaintiff and 

against Dickerson on several of Dickerson's claims. 

{¶ 27} The trial court's judgment entry enters judgment on the negligent 

misrepresentation claim in favor of Dickerson and specifically against plaintiff, Beneficial 

Mortgage Co. of Ohio. 

{¶ 28} 8. Prior to the June 2012 trial, several plaintiff motions were filed in which 

plaintiff was unexplainably identified as Beneficial Mortgage Company, Inc. However, in 

the attorney signature block, the attorney continued to be identified as "Attorney for 

Plaintiff Beneficial Mortgage Co. of Ohio." The earliest of these motions brought in the 

name of Beneficial Mortgage Company, Inc., was filed on March 10, 2010. However, at no 

time did the attorneys for the plaintiff file a Civ.R. 25 motion for a substitution of the 

plaintiff. 

{¶ 29} 9. On October 25, 2012, a Civ.R. 50(B) motion for judgment 

notwithstanding the verdict, or, in the alternative, for new trial, was filed in the name of 

"Plaintiff Beneficial Mortgage Company, Inc." However, the attorney signature block 

identified the plaintiff as "Beneficial Mortgage Co. of Ohio." 

{¶ 30} 10. On March 10, 2014, the trial court entered its decision denying the 

Civ.R. 50(B) motion. In its decision, the trial court refers to "Plaintiff, Beneficial 
No. 14AP-282 9 

Mortgage Company Inc." The plaintiff, Beneficial Mortgage Co. of Ohio, as named in the 

complaint, is not mentioned in the trial court's decision. 

{¶ 31} 11. On April 7, 2014, a document captioned "Notice of Appeal" was filed in 

this court. Under the caption, the document states: 

Notice is hereby given that Plaintiff-Appellant Beneficial 

Mortgage Company, Inc., appeals to the Court of Appeals, 

Tenth Appellate District, Franklin County, Ohio, from the 

Court's Judgment Entry dated October 11, 2012, as well as its 

March 10, 2014 Decision and Entry Denying Plaintiff's 

October 25, 2012 Motion for Judgment Notwithstanding the 

Verdict and Motion for a New Trial (the "JNOV Denial 

Order"). This notice is timely pursuant to App.R. 4(B)(2). A 

copy of the Judgment Entry and the JNOV Denial Order 

being appealed are attached as Exhibits A and B, 

respectively. 

{¶ 32} Thereunder, the last line of the attorney signature block states: "Attorneys 

for Plaintiff Beneficial Mortgage Company, Inc." 

{¶ 33} 12. On April 17, 2014, Dickerson filed a notice of conditional cross-appeal. 

{¶ 34} 13. On April 21, 2014, as earlier noted, Dickerson moved for dismissal of 

this appeal, arguing that appellant lacked standing to bring this action. 

{¶ 35} 14. On June 6, 2014, as earlier noted, appellant moved for leave to amend 

the notice of appeal. Appellant requests that it be granted leave to substitute "Beneficial 

Mortgage Co. of Ohio" or "Beneficial Financial I Inc." as the name of the appellant. 

{¶ 36} 15. The parties have submitted exhibits to this court as requested by the 

magistrate. On June 5, 2014, appellant filed a "notice" that presents five official 

documents kept by the Ohio Secretary of State. Also on June 5, 2014, Dickerson filed six 

official documents kept by the Ohio Secretary of State. Dickerson also submitted 

documents from other courts pertaining to Beneficial Financial I Inc. 

{¶ 37} 16. Among her exhibits, Dickerson submits a May 8, 2014 certification of 

the Ohio Secretary of State that the secretary has no record of a business entity named 

"Beneficial Mortgage Company, Inc." 

Conclusions of Law: 
No. 14AP-282 10 

{¶ 38} It is the magistrate's decision that this court deny appellant's June 6, 2014 

motion for leave to amend the notice of appeal. It is further the magistrate's decision that 

this court grant appellee's April 21, 2014 motion to dismiss this appeal. 

{¶ 39} Analysis begins with the finding that appellant Beneficial Mortgage 

Company, Inc. is not a successor of plaintiff Beneficial Mortgage Co. of Ohio. However, as 

shown by the official records of the Ohio Secretary of State, Beneficial Ohio Inc., was a 

successor by merger of plaintiff Beneficial Mortgage Co. of Ohio. Also, Beneficial 

Financial I Inc. is currently a successor by merger of plaintiff Beneficial Mortgage Co. of 

Ohio. 

{¶ 40} In fact, the corporate status of appellant remains unclear even though 

appellant was given ample opportunity by this court, through its magistrate, to clarify. 

We do know by an official record of the Ohio Secretary of State that the secretary has no 

record of an entity known as "Beneficial Mortgage Company, Inc." Significantly, at oral 

argument, upon questioning by the magistrate, appellant's counsel could not identify the 

state of incorporation of appellant, and counsel has failed to submit as evidence to this 

court any official record that identifies the corporate status of appellant. This scenario 

contrasts sharply with statements of appellant's counsel made in appellant's May 5, 2014 

response to Dickerson's April 21, 2014 motion to dismiss. Therein, appellant's counsel 

states: 

Beneficial Mortgage Company, Inc. is not purporting to 

appeal/quasi-intervene based on some independent 

relationship to the underlying facts where the true party in 

interest has chosen not to pursue those rights. The true 

rights are Beneficial Mortgage Company, Inc.'s because the 

originally named entity-plaintiff has ceased to exist and 

Beneficial Mortgage Company has succeeded to those rights. 

(Emphasis sic.) 

{¶ 41} Apparently, appellant's counsel no longer holds to the above-quoted 

statements because there is now a motion to amend the notice of appeal that, in effect, 

removes any claim that Beneficial Mortgage Company, Inc. is a successor to plaintiff 

Beneficial Mortgage Co. of Ohio. 
No. 14AP-282 11 

{¶ 42} It can be noted that there is no evidence before this court showing that an 

entity described as "Beneficial Mortgage Company" is a successor to plaintiff Beneficial 

Mortgage Co. of Ohio. Appellant did submit official records of the Ohio Secretary of State 

showing a trade name registration for "Beneficial Mortgage Co." and a trade name 

cancellation for "Beneficial Mortgage Co." The records regarding an entity known as 

"Beneficial Mortgage Co." are irrelevant to the matters before this court. Moreover, it is 

not entirely clear what appellant's counsel is endeavoring to suggest by submitting the 

records of a trade name registration and subsequent trade name cancellation for an entity 

known as "Beneficial Mortgage Co." "Beneficial Mortgage Co." is clearly not a successor to 

the plaintiff. 

{¶ 43} Given that appellant, Beneficial Mortgage Company, Inc., is not a successor 

to plaintiff Beneficial Mortgage Co. of Ohio, appellant could not have successfully sought 

to be substituted for plaintiff by way of a Civ.R. 25 motion filed in the trial court. 

Presumably, Beneficial Financial I Inc. could have been substituted, but, as earlier noted, 

a Civ.R. 25 motion was never filed in the trial court. 

{¶ 44} Based upon the above analysis, it is clear that appellant has no legal interest 

in bringing this appeal. Clearly, appellant was not a party below, nor could it have been 

made a party by substitution. Appellant is not a successor to plaintiff, Beneficial 

Mortgage Co. of Ohio, against whom the judgment lies. 

{¶ 45} App.R. 3(A), captioned "Filing the notice of appeal," provides: 

Failure of an appellant to take any step other than the timely 

filing of a notice of appeal does not affect the validity of the 

appeal, but is ground only for such action as the court of 

appeals deems appropriate, which may include dismissal of 

the appeal. 

{¶ 46} App.R. 3(D), captioned "Content of the notice of appeal," provides: 

The notice of appeal shall specify the party or parties taking 

the appeal; shall designate the judgment, order or part 

thereof apealed [sic] from; and shall name the court to which 

the appeal is taken. 

{¶ 47} App.R. 3(F), effective July 1, 2013, is captioned "Amendment of the notice of 

appeal." The rule provides: 
No. 14AP-282 12 

(1) When leave required. A party may amend a notice of 

appeal without leave if the time to appeal from the order that 

was the subject of the initial notice of appeal has not yet 

lapsed under App.R. 4. Thereafter, the court of appeals 

within its discretion and upon such terms as are just may 

allow the amendment of a notice of appeal, so long as the 

amendment does not seek to appeal from a trial court order 

beyond the time requirements of App.R. 4. 

(Emphasis sic.) 

{¶ 48} Prior to July 1, 2013, App.R. 3(F) captioned "Amendment of the notice of 

appeal" stated in its entirety: 

The court of appeals within its discretion and upon such 

terms as are just may allow the amendment of a timely filed 

notice of appeal. 

{¶ 49} The 2013 staff notes regarding the July 1, 2013 amendment of former 

App.R. 3(F), state: 

App.R. 3(F) is amended to clarify the procedure for 

amending a notice of appeal. Amending a notice of appeal is 

an efficient mechanism for appealing from a trial court order 

different from the order referenced in the initial notice of 

appeal without having to file a second notice of appeal and 

then seeking to consolidate the two appellate cases. The 

amendment clarifies that no leave is required to amend a 

notice of appeal if the time to appeal from the order 

identified in the initial notice of appeal has not yet lapsed 

under App.R. 4; * * *. By contrast, leave is required if a party 

seeks timely to appeal from a subsequent trial court order 

after the time to appeal from the originally appealed order 

has expired under App.R. 4; the decision whether to grant 

leave at that point is discretionary, reflecting the general 

reluctance to permit such amendments, see, e.g., Rickard v. 

Trumbull Twp. Zoning Bd., 11th Dist. Nos. 2008-A-0024, 

2008-A-0027, 2008-A-0025, 2008-A-0028, and 2008-A0026, 2009-Ohio-2619, ¶ 42, but also recognizing the 

potential efficiencies of avoiding a second appeal if the 

orders in question are inter-related. In all events, however, 

an amended notice of appeal may not be used to appeal from 

a trial court order if the time to appeal from that order has 

already lapsed under App.R. 4. 
No. 14AP-282 13 

{¶ 50} In Transamerica Ins. Co. v. Nolan, 72 Ohio St.3d 320 (1995), the court had 

occasion to apply App.R. 3(A) and (D). 

{¶ 51} In Transamerica, in June 1987, an automobile driven by Lori Watkins 

collided with a truck operated by Terry Nolan and a third vehicle driven by Adam Sohn. 

Nolan and three passengers in the Watkins vehicle were killed as a result. Anthony 

Wallace was one of the three passengers killed. Appellants, Linda and Dennis Wallace, 

are the parents of Anthony Wallace. 

{¶ 52} The trial court entered judgment for the Wallaces, but this court reversed. 

The cause came before the Supreme Court of Ohio pursuant to the allowance of a motion 

to certify the record. 

{¶ 53} Pertinent here, in a unanimous decision, the Transamerica court states: 

As a preliminary matter, we must first determine whether 

the court of appeals was correct in holding that it lacked 

jurisdiction over the appeal of Linda Wallace. The notice of 

appeal filed in the court of appeals designated the appellants 

as “Dennis Wallace et al.” The court of appeals held that the 

notice failed to comply with App.R. 3(D) and that the defect 

was jurisdictional. App.R. 3(D) provides that the “notice of 

appeal shall specify the party or parties taking the appeal.” 

The court of appeals relied on its decision in Seipelt v. 

Motorists Mut. Ins. Co. (1992), 81 Ohio App.3d 530, 611 

N.E.2d 917, which relied on the reasoning in Torres v. 

Oakland Scavenger Co. (1987), 487 U.S. 312, 108 S.Ct. 2405, 

101 L.Ed.2d 285. In Torres the Supreme Court held that the 

designation “et al.” fails to provide the notice required under 

the similar federal rule and acted as a jurisdictional bar. 

Although the relevant portion of the version of Fed.R.App.P. 

3 considered in Torres was virtually the same as App.R. 3, 

we do not interpret the Ohio rule so strictly. Ohio App.R. 

3(A) provides, “Failure of an appellant to take any step other 

than the timely filing of a notice of appeal does not affect the 

validity of the appeal, but is ground only for such action as 

the court of appeals deems appropriate, which may include 

dismissal of the appeal.” * * * App.R. 3(A) is controlling. 

Pursuant to App.R. 3(A), the only jurisdictional requirement 

for the filing of a valid appeal is the timely filing of a notice of 

appeal. When presented with other defects in the notice of 

appeal, a court of appeals is vested with discretion to 

determine whether sanctions, including dismissal, are 
No. 14AP-282 14 

warranted, and its decision will not be overturned absent an 

abuse of discretion. 

The court of appeals abused its discretion by refusing to 

consider the appeal of Linda Wallace. We have held that the 

failure to file separate notices of appeal for cases that had 

been consolidated in the trial court, as required by local rule, 

is not a jurisdictional defect. Natl. Mut. Ins. Co. v. 

Papenhagen (1987), 30 Ohio St.3d 14, 30 OBR 21, 505 

N.E.2d 980. We reasoned that the court of appeals had 

abused its discretion by dismissing the appeal when the 

mistake was made in good faith, no prejudice accrued as a 

result, dismissal constituted a disproportionate sanction, the 

client was punished for the fault of his counsel and the 

dismissal frustrated the overriding objective of deciding 

cases on their merits. Use of the term “et al.” might not 

always be appropriate, but here appellees were not 

prejudiced by the use of the designation. All parties were 

aware of the interests of Linda Wallace and proceeded under 

the assumption that she was a party. Therefore, the court of 

appeals abused its discretion by failing to consider her 

appeal. 

(Footnotes omitted.) Id. at 322-23. 

{¶ 54} In Ambrosia Coal & Constr. Co. v. C.B.G. Inc., 7th Dist. No. 00C.A. 101 

(2001), the court distinguished the Transamerica case when it dismissed an appeal 

pursuant to App.R. 3(D). In denying an App.R. 3(F) motion to amend the notice of 

appeal, the court held that a party to the action below who was prosecuting the appeal had 

failed to invoke the court's appellate jurisdiction because the party was not named as an 

appellant on the notice of appeal. 

{¶ 55} In Ambrosia, the appellee (hereinafter "Ambrosia") leased premises to the 

appellant (hereinafter "C.B.G. Inc."), who thereafter assigned the lease to Leber, Inc. 

{¶ 56} Ambrosia's complaint in forcible entry and detainer named C.B.G., Inc., and 

Leber, Inc., as defendants. On summary judgment, Ambrosia obtained a writ of 

restitution against Leber, Inc. In May 2000, a notice of appeal was filed listing only the 

defendant C.B.G. Inc. as taking an appeal. 
No. 14AP-282 15 

{¶ 57} In September 2000, the brief of appellant was filed listing Leber, Inc. as the 

appellant. Earlier, the corporate charter of C.B.G. Inc. was cancelled for failing to file a 

corporate franchise tax. 

{¶ 58} In October 2000, the appellee filed its motion to strike the brief filed by 

Leber, Inc., and to dismiss the appeal. The appellant responded to the motion to dismiss 

and also moved to amend its notice of appeal to include Leber, Inc. as a plaintiffappellant. 

{¶ 59} In denying the motion to amend the notice of appeal and dismissing the 

appeal, the Ambrosia court explained: 

Appellee argues that C.B.G., Inc. and Leber, Inc. are not 

identically situated. C.B.G., Inc. no longer exists and the 

outcome of the appeal would have no affect on it. Leber, Inc., 

the tenant under the lease as an assignee, failed to file a 

notice of appeal within the time period required under the 

appellate rules. 

The Twelfth District Court of Appeals held in Seinpelt v. 

Motorists Mutual Ins. Co. (1992), 81 Ohio App.3d 530: 

“ * * * failing to specify the parties taking the appeal is more 

than an ‘excusable informality’; it constitutes a failure of the 

parties to appeal and is therefore a jurisdictional bar.” 

While Seinpelt would appear to be no longer upheld in view 

of the later Transamerica decision regarding the use of “et 

al.” in characterizing the parties appellant, it is relevant in its 

application of App.R. 3[D] requiring that the parties taking 

the appeal be specified in the notice of appeal. In this case 

there is no designation of Leber, Inc. as taking an appeal nor 

is there a designation that C.B.G., Inc., et al. was taking an 

appeal. (Emphasis added). 

Furthermore, the motion for leave to amend filed by 

appellant, C.B.G., Inc. is a nullity as it no longer exists. 

Leber, Inc. did not separately file a notice of appeal and such 

failure is a jurisdictional bar to this court to consider any 

assignment of error raised by Leber, Inc. 

App.R. 3(F) permits this court to amend a timely filed notice 

of appeal. Leber, Inc. did not timely file an appeal, and may 

not use a non-existent entity to bootstrap itself on to the 

notice of appeal. 
No. 14AP-282 16 

Properly perfecting an appeal is jurisdictional. See Guy v. 

City of Steubenville (Jan. 15, 1998), Jefferson App. No. 97-

JE-22, unreported. To properly perfect an appeal it was 

incumbent upon Leber, Inc. to file a notice of appeal within 

thirty (30) days after the judgment of April 26, 2000. It did 

not timely file the notice required so as to invoke the 

jurisdiction of this court to review any claimed error as to it. 

As Leber, Inc. is not a party to this appeal, the appellee's 

motion to strike the brief filed on behalf of Leber, Inc. on 

September 26, 2000, is sustained. Moreover, appellee's 

motion to dismiss this appeal is sustained, as C.B.G., Inc. has 

been dissolved and no longer exists, which also dictates that 

we deny the motion for leave to amend to add Leber, Inc. as 

a party appellant. 

Id. 

{¶ 60} Ambrosia compels denial of appellant's motion for leave to amend the 

notice of appeal. Ambrosia also compels dismissal of this appeal. 

{¶ 61} Appellant, Beneficial Mortgage Company, Inc., was not a party to the 

proceedings below, could not have been made a party to the proceedings below, and has 

no legal interest in bringing this appeal. Thus, the April 7, 2014 notice of appeal failed to 

invoke the appellate jurisdiction of this court. Consequently, the April 7, 2014 notice of 

appeal may not be used to bring the real party in interest into this appeal. That is, the 

April 7, 2014 notice of appeal may not be used to bring either Beneficial Mortgage Co. of 

Ohio or Beneficial Financial I Inc. into this appeal. To allow the amendment of the notice 

of appeal would in effect allow an appeal beyond the time requirements of App.R. 4. 

{¶ 62} Accordingly, for all the above reasons, it is the magistrate's decision that this 

court deny appellant's June 6, 2014 motion for leave to amend the notice of appeal. It is 

further the magistrate's decision that this court grant appellee's April 21, 2014 motion to 

dismiss. 

 /S/ MAGISTRATE 

 KENNETH W. MACKE 
No. 14AP-282 17 

NOTICE TO THE PARTIES 

Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign 

as error on appeal the court's adoption of any factual finding 

or legal conclusion, whether or not specifically designated as 

a finding of fact or conclusion of law under Civ.R. 

53(D)(3)(a)(ii), unless the party timely and specifically 

objects to that factual finding or legal conclusion as required 

by Civ.R. 53(D)(3)(b).